ONE HUNDRED
AND SEVENTY-NINTH DAY
Tuesday, 16 July 1946

Morning

FLOTTENRICHTER KRANZBUEHLER: Mr. President, Gentlemen of the Tribunal: I would like to sum up my statements of yesterday and make the following remarks regarding the conduct of German U-boats against enemy merchant vessels.

I believe that the German construction of the London Agreement of 1936, in the light of the position taken by some of the powers involved, as generally known to all experts, as well as according to the opinion of numerous and competent jurists of all countries, was in no way fraudulent. If I were to express myself with all caution, I would say that it is, legally, at least, perfectly tenable, and thus not the slightest charge can be raised against the German Naval Command for issuing its orders on a sensible and perfectly fair basis. We have shown that these orders were given only in consequence of the conditions created by publication of the British measures, which, according to the German concept of law, justified the orders issued.

Before I leave this subject I should like to recall to the mind of the Tribunal the special protection which the German orders provided for passenger vessels. These passenger vessels were excluded for a long time from all measures involving sinking of ships, even when they sailed in an enemy convoy and therefore could have been sunk immediately, according to the British conception. These measures indicate very clearly that the accusation of disregard and brutality is unjustified. The passenger vessels were only included in the orders concerning other vessels when in the spring of 1940 there was no longer any harmless passenger traffic at all, and when these ships, because of their great speed and heavy armament, proved to be particularly dangerous enemies of the submarines. If therefore Mr. Roger Allen's report cites as an especially striking example of German submarine cruelty the sinking of the City of Benares in the autumn of 1940, then this example is not very well chosen because the City of Benares was armed and went under convoy.

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I shall turn now to the treatment of neutrals in the conduct of German submarine warfare, and I can at once point again in this connection to the example which Mr. Roger Allen cites especially for the sinking of a neutral vessel contrary to international law. It concerns the torpedoing of the Danish steamer Vendia, which occurred at the end of September 1939. The Tribunal will recall that this ship was stopped in a regular way and was torpedoed and sunk only when it prepared to ram the German submarine. This occurrence led the German Government to protest to the Danish Government on account of the hostile conduct shown by a neutral boat.

This one example is just to show how different things look if not only the result in the form of the sinking of a neutral ship is known, but also the causes which led to this result. Until the last day of the war the fundamental order to the German submarines was not to attack merchantmen recognized as neutral. There were some accurately defined exceptions to this order, about which the neutral powers had been notified. They affected in the first place ships which conducted themselves in a suspicious or hostile manner, and secondly ships in announced operational areas.

To the first group belonged, above all, those vessels which>sailed blacked-out in the war area. On 26 September 1939 the Commander of U-boats asked the High Command of the Navy for permission to attack without warning vessels proceeding in the Channel without lights. The reason was clear. At night the enemy's troop and materiel shipments were taking place, by which the second wave of the British expeditionary army was ferried across to France. At that time the order was still in effect that French ships were not to be attacked at all. But since French ships could not be distinguished from English vessels at night, submarine warfare in the Channel would have had to be discontinued completely after dark in compliance with this order. The Tribunal heard from a witness that in this way a 20,000-ton troop transport passed unmolested in front of the torpedo tubes of a German submarine. Such an occurrence in war is grotesque and therefore of course the Naval Operations Staff approved the request of the Commander of U-boats.

The Prosecution has now made much ado about a note written on this occasion by an assistant at the Naval Operations Staff, Kapitaenleutnant Fresdorf. The Chief of Section, Admiral Wagner, already disapproved of the opinions expressed in this note; therefore they did not result in corresponding orders. The order to attack blacked-out ships was issued by radio without any further addition on the part of the Naval Operations Staff and on 4 October it was extended to further regions along the British coast, and again without any addition in the sense of the above-mentioned note.

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Examining the question of blacked-out vessels from the legal standpoint, Vanselow, the well-known expert on the law governing naval warfare, makes the following remark:*

"In war a blacked-out vessel must in case of doubt be considered as an enemy warship. A neutral as well as an enemy merchant vessel navigating without light voluntarily renounces during the hours of darkness all claim to immunity from attack without being stopped."

I furthermore refer to Churchill's declaration, made in the House of Commons on 8 May 1940, concerning the action of British sum marines in the Jutland area. Since the beginning of April they had had orders to attack all German vessels without warning during the daytime, and all vessels, and thus all neutrals, as well, at night. This amounts to recognition of the legal standpoint as presented. It even goes beyond the German order, insofar as neutral merchant vessels navigating with all lights on were sunk without warning in these waters. In view of the clear legal aspect it would hardly have been necessary to give an express warning to neutral shipping against suspicious or hostile conduct. Nevertheless, the Naval Operations Staff saw to it that this was done.

On 28 September 1939 the first German note was sent to the neutral governments with the request that they warn their merchant ships against any suspicious conduct, such as changes in course and the use of wireless upon sighting German naval forces, blacking out, noncompliance with the request to stop, et cetera. These warnings were subsequently repeated several times, and the neutral governments passed them on to their captains. All this has been proved by documents which have been submitted. If therefore, as a result of suspicious or hostile conduct, neutral ships were treated like enemy ships, they have only themselves to blame for it. The German submarines were not allowed to attack any one who as a neutral maintained a correct attitude during the war, and there are hundreds of examples to prove that such attacks never did occur.

Now I wish to deal with the second danger which threatened neutral shipping: The zones of operations. The actual development, briefly summed up, was as follows:

On 24 November 1939 the Reich Government sent a note to all seafaring neutrals in which it pointed out the use of enemy merchant ships for aggressive purposes, as well as the fact that the Government of the United States had barred to its own shipping a carefully defined naval zone around the central European coast,

* Vanselow, Volkerrecht, Berlin, 1931, Figure 226 i.

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the so-called U.S.A. combat zone. As the note states, these two facts give the Reich Government cause-I quote:

". . . to warn anew and more strongly that in view of the fact that the actions are carried on with all the technical means of modern warfare, and in view of the fact that these actions are increasing in the waters around the British Isles and near the French coast, these waters can no longer be considered safe for neutral shipping."

The note then recommends as shipping lanes between neutral powers certain sea routes which are not endangered by German naval warfare and, furthermore, recommends legislative measures according to the example set by the United States. In concluding, the Reich Government rejects responsibility for any consequences which might follow if warning and recommendation should not be complied with. This note constituted the announcement of an operational area equivalent in size to the U.S.A. combat zone, with the specified limitation that only in those sea zones which were actually endangered by actions against the enemy consideration could no longer be given to neutral shipping.

The Naval Operations Staff did indeed observe this limitation. The neutral powers had more than 6 weeks in which to take the measures recommended by the German Government for the safety of their own shipping and to direct their shipping along the routes announced. Starting in January the German command then opened up to the German naval forces, within the operational area announced, certain accurately defined zones around the British coast, in which an attack without warning against all ships sailing there was admissible. The naval chart on which these zones had been marked was submitted to the Tribunal. The chart shows that these zones, and only these, were gradually set up where, as a result of mutually increasing attacks and defensive actions at sea and in the air, engagements continually occurred, so that any ship entering this area was operating in the direct presence of the naval forces of both powers. The last of these zones was designated in May 1940. These zones were not, and need not have been, announced because they were all within the area of operations as proclaimed on 24 November 1939. The distance of these zones from the enemy coast was on the average 60 sea miles. Outside their boundaries the declaration concerning the area of operations of 24 November was not observed, that is to say, neutral ships could be stopped and sunk only in accordance with the Prize Ordinance.

This situation changed when, after the collapse of France in the summer of 1940, the British Isles became the center of war operations. On 17 August 1940 the Reich Government sent to the neutral governments a declaration in which the entire area of the U.S.A.

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combat zone around England without any limitation was designated as an operational area.

"Every ship"-so the note reads-"which sails in this area exposes itself to destruction not only by mines but also by other combat means. Therefore the German Government once more urgently warns against entering this endangered area."

From this time on the area was fully utilized and the immediate use of arms against craft encountered in it was permitted to all naval and air forces, except where special exceptions had been ordered. The entire development described was openly dealt with in the German press, and Grossadmiral Raeder granted interviews to the foreign press on this subject, which clearly showed the German viewpoint. If therefore in the sea zones mentioned neutral ships and crews sustained losses, at least they cannot complain about not having been warned explicitly and urgently beforehand.

This statement in itself has not much meaning in the question of whether areas of operation as such constitute an admissible measure. Here, too, the Prosecution will take the position that in the London Agreement of 1936 no exceptions of any kind were made for areas of operation and that therefore such exceptions do not exist.

It is a well-known fact that operational areas were originally proclaimed in the first World War. The first declaration of this kind came from the British Government on 2 November 1914, and designated the entire area of the North Sea as a military area. This declaration was intended as a reprisal against alleged German violations of international law. Since this justification naturally was not recognized, the Imperial Government replied on 4 February1915 by designating the waters around England as a military area. On both sides certain extensions were made subsequently. I do not wish to go into the individual formulations of these declarations and into the judicial legal deductions which were made from their wording for or against the admissibility of these declarations. Whether these areas are designated as military area, barred zone, operational area, or danger zone, the point always remained that the naval forces in the area determined had permission to destroy any ship encountered there. After the World War the general conviction of naval officers and experts on international law alike was that the operational area would be maintained as a means of naval warfare. A development, typical for the rules of naval warfare, was confirmed here, namely, that the modern technique of war forcibly leads to the use of war methods which at first are introduced in the guise of reprisals, but which gradually come to be employed without such a justification and recognized as legitimate.

The technical reasons for such a development are obvious: The improvement of mines made it possible to render large sea areas

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dangerous. But if it was admissible to destroy by mines every ship sailing, despite warning, in a designated sea area, one could see no reason why other means of naval warfare should not be used in this area in the same way. Besides, the traditional institution of the blockade directly off enemy ports and coasts by mines, submarines, and aircraft was made practically impossible, so that the sea powers had to look for new ways to bar the approach to enemy coasts. Consequently it was these necessities which were the compelling factors in bringing about the recognition of the operational area.

It is true that there was by no means a uniform interpretation concerning the particular prerequisites under which the declaration of such areas would be considered admissible, just as there was none with regard to the designation which the belligerent power must choose. The conferences of 1922 and 1930 did not change anything either in that respect, as can be seen, for instance, from the efforts made after 1930, especially by American politicians and experts in international law, for a solution of this question.*

Unfortunately, there is no time at my disposal to discuss these questions in detail and therefore it must suffice for the purposes of the defense to state that during the conferences in Washington in 1922 and in London in 1930 the operational area was an arrangement or system known to all powers concerned, which operated in a way determined by both sides in the first World War; that is, that all ships encountered in it would be subject to immediate destruction. If the operational area were to have been abolished in the afore-mentioned conferences, especially in the treaty of 1930, an accord should have been reached on this question, if not in the text of the agreement then at least in the negotiations. The minutes show nothing of the kind. The relationship between operational area and the London Agreement remained unsettled.

The French Admiral Castex** has the same viewpoint; Admiral Bauer, Commander of Submarines in the first World War, voiced his disapproval in 1931 of the application of the London rules in the operational area, and this opinion was not unknown to the British Navy.*** In a thorough study published by Professor Ernst Schmitz**** in 1938 a merchant vessel which enters an operational

* In 1935, the American Senator Ney demanded the prohibition of operational areas. In 1937 Charles Warren made a request for discussion of the subject in the Society for International Law. And also the afore-mentioned draft of a convention by American jurists of 1939 deals with this question.

area despite general prohibition is deemed to be guilty of "persistent refusal to stop." The powers participating in the conferences in Washington and London carefully refrained; as also in other cases, from tackling controversial questions on which no accord could be reached. Therefore every power remained at liberty to champion in practice such an opinion as corresponded with its own interests. There was no doubt left in the minds of the participants as to this fact, and I have as a witness for this no less a person than the French Minister for Foreign Affairs at that time, M. Briand. In his instruction of 30 December 1921 to Sarraut, the French chief delegate in Washington, he announces his basic readiness to conclude an agreement on submarine warfare. However, he then points out a series of questions described as essential parts of such an agreement, among them the arming of merchant ships and the definition of combat zones. The instruction goes on:

"It is indispensable to examine these questions and to solve them by a joint agreement, for surface vessels as well as for submarines and aircraft, in order not to establish ineffective and deceptive stipulations."*

Particularly with respect to the question concerning the area of operations, Briand characterizes the submarine rules as being "ineffective and deceptive."

After this testimony nobody would designate the German conception as fraudulent, according to which ships in declared areas of operation forfeit the protection under the London Agreement. Even Mr. Roger Allen's report concedes this.** Therefore the attacks of the Prosecution seem to be directed, as I understand from the cross-examination, not so much against the existence of such zones as against their extent, and we have repeatedly heard the figure of 750,000 square sea miles. Incidentally, it must be noted that this figure includes the territorial area of Great Britain, Ireland, and western France; the maritime area only amounts to 600,000 square miles. I quite agree, however, that through operational areas of such a size the interests of the neutrals were badly prejudiced.

It is all the more remarkable that the afore-mentioned American draft of the convention of 1939, which concerns the rights and duties of neutrals, provides for a considerable expansion of the operational area. Such an area, which is termed "blockade zone" in the draft, was to include the waters up to a distance of 50 sea miles from the blockaded coast.

* French Yellow Book, La Conference de Washington, Page 88. " Report of 8 October 1940, Page 3: "On- thing is certain, namely, apart from vessels in declared war zones, destruction of a merchant vessel is envisaged if even only after capture."

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THE PRESIDENT: Dr. Kranzbuehler, the Tribunal would like to know what that American draft of 1939 is, to which you refer.

FLOTTENRICHTER KRANZBOHLER: It is the draft set up by the American Professors Jessup Borchard and Charles Warren, dealing with the rights and duties of neutrals in sea warfare. It was published in the American Journal of International Law of July 1939.

THE PRESIDENT: Jessup and Warren, you say?

FLOTTENRICHTER KRANZBUEHLER: Jessup Borchard and Charles Warren.

THE PRESIDENT: Thank you.

FLOTTENRICHTER KRANZBUEHLER: This would correspond roughly to the area of waters in which attacks without warning were authorized until 17 August 1940; it covers approximately 200,000 square sea miles.

However, it seems to me almost impossible to approach from a juridical angle such an eminently practical question as that of the extent of an operational area. As long as this question is not settled by an agreement the actual determination will always be a compromise between what is desirable from a military point of view and what is politically possible. It seems to me that the law is only violated when a belligerent misuses his power against neutrals. The question as to whether such misuse takes place should be made dependent both upon the attitude of the enemy toward the neutrals and upon the measures taken by the neutrals themselves.

THE PRESIDENT: One minute. Dr. Kranzbuehler, does not the right to declare a certain zone as an operational zone depend upon the power to enforce it?

FLOTTENRICHTER KRANZB0HLER: I do not quite follow the point of your question.

THE PRESIDENT: Well, your contention is, apparently, that any state at war has a right to declare such an operational zone as it thinks right and in accordance with its interests, and what I was asking you was whether the right to declare an operational zone, if there is such a right, does not depend upon the ability or power of the state declaring the zone to enforce that zone, to prevent any ships coming into it without being either captured or shot.

FLOTTENRICHTER KRANZBUEHLER: I do not believe, Mr. President, that there exists agreement of expert opinion regarding that question. In contrast to the blockade zone in a classical sense where full effect is necessary, the operational zone only provides

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for practical endangering through continuous combat actions. This practical threat was present in the German operational zone in my opinion, and I refer in that connection to the proclamation of President Roosevelt regarding the U.S.A. combat zone, where the entering of that zone was prohibited, because as a result of combat actions shipping must of necessity be continuously endangered.

THE PRESIDENT: The proclamation of the President of the United States was directed, was it not, solely to United States vessels?

FLOTTENRICHTER KRANZENBUEHLER: I am referring to it only to establish proof of the German interpretation that this area was endangered, and practical danger seems to be the only legal and necessary prerequisite for declaring an operational zone.

THE PRESIDENT: Would you say that it was a valid proclamation if Germany had declared the whole of the Atlantic to be an operational zone?

FLOTTENRICHTER KRANZBOHLER: Mr. President, I would say that at the beginning of the war that would not have been possible, for the German forces at that time, without doubt, did not constitute an effective danger to the entire Atlantic sea traffic. I am of the opinion, however, that with the increase in the number of U-boats on the one hand, and with the increase of defense by hostile aircraft on the other, the danger zone of course expanded, and therefore the development of this war quite logically led to the point where operational zones were gradually extended and enlarged.

THE PRESIDENT: Do you mean, then, that you are basing the power of the state to declare a certain zone as an operational zone not upon the power of the state to enforce its orders in that zone, but upon the possibility of danger in-that zone?

FLOTTENRICHTER KRANZBUEHLER: Yes.

THE PRESIDENT: You say it depends upon the possibility of danger in the zone?

FLOTTENRICHTER KRANZBOHLER: I would not say the possibility of danger, Mr. President, but the probability of danger, and the impossibility for the belligerent to protect neutral shipping against this danger.

THE PRESIDENT: May I ask you what other legal basis there is for the theory you are putting forward, other than the adoption of the blockade?

FLOTTENRICHTER KRANZBUEHLER: I am referring as a legal basis especially to the practice of the first World War, and the statements made by experts after the first World War, and also to

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the generally recognized rules about mined areas. The mined areas actually in this war proved to be operational zones where every means of sea warfare was used to sink without warning. I shall later refer to this topic once more.

THE PRESIDENT: Thank you.

FLOTTENRICHTER KRANZBUEHLER: During the presentation of documents, the Tribunal has eliminated all those which I intended to utilize in order to prove that British naval warfare also paid no attention to the interests of neutrals when they were in contradiction with their own interests. If it is the Tribunal's wish, I will not go into the details of the British measures, and in summing up I will mention them only insofar as they are indispensable for the legal argumentation. The following points are essential:

(1) The British regulations of 3 September 1939 concerning contraband goods, which practically precluded neutral mercantile traffic with Germany through the introduction of the so-called "hunger blockade."

(2) The decree concerning control ports for contraband goods, which compelled neutral ships to make great detours right through the war zone, and to which must be imputed without doubt a series of losses of neutral ships and crews.

(3) The introduction of an export blockade against Germany on 27 November 1939, by means of which the importation of German goods was cut off for neutrals.

(4) The introduction of the navicert system and the black lists, which put the whole of neutral trade under British control and which made ships refusing to accept this system liable to be seized and confiscated.

I do not have to examine the question here whether these British measures toward neutrals were admissible or not from the point of view of international law. In any case the neutrals themselves considered many of them inadmissible, and there was hardly a single one which did not bring forth' more or less vehement protests, for instance from Spain, the Netherlands, Soviet Russia, and the United States. From the beginning, the British Government for its part had forestalled any legal examination of the measures by renouncing the optional clause of the Permanent International Tribunal in The Hague, through a note of 7 September 1939. This step was expressly vindicated by the necessity for providing the British Navy with full freedom of action.

On the British side the fact was emphasized in the first World War and ever since that although British measures did prejudice the interests and possibly also the rights of the neutrals, they did not imperil either the ships or the crews and were therefore to be

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considered morally superior to the inhuman German measures. Actually, as mentioned before, the obligation to enter control ports was dangerous for neutral ships and crews and for this very reason the neutral countries protested against it. But apart from this, it seems to me that the actual divergence between the British and German measures for blockading the adversary is not founded upon moral differences, but rather upon difference in sea power. In the waters where the British Navy did not exercise naval supremacy, namely, off the coasts we occupied, and in the Baltic Sea, it used the same methods of naval warfare as we did.

In any case the official German opinion was that the aforementioned British control measures against neutrals were inadmissible, and the Reich Government reproached the neutral powers with the fact that, although protesting, they in point of fact submitted to the British measures. This is clearly stated in the proclamation issued on the occasion of the declaration of the blockade on 17 August 1940. Consequently, the following facts confronted the German Naval Command:

(1) A legal trade between the neutrals and the British Isles no longer existed. On the grounds of the German answers to the British stipulations concerning contraband goods and the British export blockade, any trade to and from England was contraband trade and therefore illegal from the point of view of international law.

(2) The neutrals in practice submitted to all British measures, even when these measures were contrary to their own interests and their own conception of legality.

(3) Thus, the neutrals directly supported British warfare, for by submitting to the British control system in their own country they permitted the British Navy to economize considerably on fighting forces which, according to the hitherto existing international law, should have exercised trade control at sea and which were now available for other war tasks.

Therefore the German Government, in determining its operational area with a view to preventing illegal traffic from reaching England, saw no reason for giving preference to the neutrals over its own military requirements, all the less so since neutral shipping, which despite all warnings continued to head for England, demanded a great deal of money for this increased risk and therefore despite all risks still considered trade with England a profitable business.*

* Commander Mussel Grenfell, R. N., The Art of the Admira1, London, 1937, Page 80. "The neutral merchants, however, are not likely to relinquish a highly lucrative trade without a struggle and thus there arises the acrimonious wrangle between belligerents and neutrals which is a regular feature of maritime warfare, the rules for which are dignified by the name of international law."

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In addition to that, the most important neutrals themselves took measures which can be regarded as a completely novel interpretation of the existing laws of naval warfare. All the American countries jointly proclaimed the Pan-American safety zone, an area along the American coast within a distance of approximately 300 sea miles. In these waters, comprising altogether several million square miles, they required belligerents to forego the exercise of these rights which, according to hitherto existing international law, the naval forces of the belligerents were entitled to apply to neutrals. On the other hand, as I have already mentioned, the President of the United States prohibited, on 4 November 1939, U.S. citizens and ships from entering the waters extending over approximately one million square miles along the European coast. Thus the development of the laws of naval warfare, under the influence of the neutrals, necessarily led to the recognition of large areas reserved either for the purpose of safety or for that of combat. In this connection the American President explicitly stated in his proclamation that the maritime zone he had closed was "endangered by combat action" as a result of technical developments. The proclamation thus only took into account the development of modern weapons; the long-range coastal artillery which, for example, could easily fire across the English Channel; the invention of locating devices which permitted coastal supervision of maritime traffic over large areas; and particularly the increased speed and range of aircraft.

From this development the German Naval Command drew the same conclusion as the above-mentioned neutrals, namely, that defensive and offensive action would necessarily have to cover large maritime areas in this war. It was therefore not through arbitrary action that the German operational area, which the Prosecution objects to, grew to such a size; it was only because the German Naval Command was adapting itself to a system which was recognized by the other powers also as justified.

In order to examine the legality of the German measures on the basis of enemy methods, may I ask the Tribunal to recall the naval chart on which the British zones of warning and danger are marked. These zones cover about 120,000 square sea miles. Even if these dimensions are smaller than those of the German operational area, it seems to me that the difference between 100,000 and 600,000 square miles is not so much a question of legal judgment as one of coastal length and of strategic position on the sea. This observation is confirmed by the American practice against Japan, as described by Admiral Nimitz. He says:

"In the interest of the conduct of operations against Japan the area of the Pacific Ocean is declared a zone of operations."

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This zone of operations covers more than 30 million square miles. All ships therein, with the exception of U.S. and Allied, and hospital ships, were sunk without warning. The order was issued on the first day of the war, on 7 December 1941, when the Chief of the Admiralty ordered unrestricted submarine warfare against Japan.

It is not for me to examine whether this order, issued on the first day of the war, is to be looked upon and justified as a measure of reprisal. For me the important thing is to show what actual practice looked like, and that is unequivocal.

The Prosecution finds particularly blameworthy the orders to carry out attacks without warning in the operational areas, if possible without being noticed, so that mine hits could be claimed. Orders to this effect existed for the period between January and August 1940, that is to say, during the period when submarines were not permitted to act without warning throughout the operational area of 24 November 1939, but only in the specially defined areas off the British coast. In this camouflage the Prosecution sees proof of a bad conscience amounting to the recognition of wrongdoing. The real reasons for the measures ordered were both military and political. For the admirals concerned the military reasons, of course, took first place, and these alone were known to the Commander of U-boats. The enemy was to be left in uncertainty as to what weapons of naval warfare had caused his losses, and his defense was to be led astray in this manner. It is obvious that such misleading of the enemy is fully justified in time of war. The measures had the desired military success, and in numerous cases the British Navy employed flotillas of mine sweepers on the spot where a ship had been torpedoed, and conversely started a submarine chase where a loss had occurred through mine hits.

For the Supreme Command, however, it was not the military but the political reasons that were the determining factor. These invisible attacks were meant to provide an opportunity of denying to the neutrals that the sinkings were due to submarines, and of tracing them back to mines. This actually did happen in some cases. Does that mean that the German Government itself considered the use of submarine action without warning within the area of operations to be illegal? I do not think so.

In view of the repeated accusations which the Prosecution have construed here and elsewhere from the camouflaging of measures and the denial of facts, I feel obliged to make a few remarks on the point as to whether there is any obligation at all in international politics to tell the truth. However things may be in peacetime, in times of war at any rate one cannot recognize any obligation to tell the truth in a question which may be of advantage to the enemy. I need only point to Hugo Grotius who says: "It is permissible to

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conceal the truth wisely. Dissimulation is absolutely necessary and unavoidable."*

What would it have meant for the military situation if U-boat sinkings such as in the instances dealt with here had not been denied but admitted instead? First of all, since that would have come to the knowledge of the enemy too, we should have lost the military advantage which lay in misleading his defense. Furthermore-and this is no less important-we might quite possibly have furnished our enemy with allies who would have helped him at least with propaganda, if not with their weapons. 'In view of the fact that some of the neutrals concerned were so dependent on England, they probably would not have recognized the German viewpoint as to the legitimacy of the operational areas, especially since this viewpoint was contrary to their own interests. It would have led to political tensions, and possibly to armed conflicts. Our enemies would have derived the only immediate advantage from it. From the standpoint of the law this endeavor to camouflage the use of submarines with regard to the neutrals does not seem objectionable to me.

But if the Prosecution uses this with the intention of moral defamation, it is applying standards which heretofore have never been applied to the conduct of a war and to the politics of any other country in the world. It was precisely in naval warfare that the same methods of camouflage were employed by the other side, too. The operational areas which Great Britain declared off the European coasts from Norway to Biscay were, with the exception of the Biscay area, declared mine danger zones. But we know from Churchill's statement of May 1940, as well as from testimonies of witnesses, that in these areas there were unlimited attacks with submarines, speedboats and, above all, with airplanes. Consequently very often neither the German command nor the neutral country which had been attacked knew whether a loss sustained in such an area really should be traced back to a mine or to another weapon of naval warfare. To conclude that the camouflaging of a measure constitutes its illegality thus seems to me entirely without basis.

Within the German operational zone all ships were on principle attacked without warning. However, orders had been given to make exceptions in the case of certain neutrals, such as, in the beginning, Japan, the Soviet Union, Spain, and Italy. In this measure the Prosecution saw the endeavor of the Naval Operations Staff to terrorize the smaller neutral countries whereas it dared not

* De jure pacis ac belli, Book III, Chapter I, Paragraph 6, citation Augustin: "One may conceal the truth wisely,'' and Cicero: "Dissimulation is absolutely necessary and unavoidable, especially for those to whom the care of the state is entrusted."

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pick a quarrel with the big ones. The real reason for this differentiating treatment is given in Document UK-65 in the notation on the report which the Commander-in-Chief of the Navy made to the Fuehrer on 16 October 1939.

According to this the neutral governments mentioned are requested to declare that they will not carry contraband; otherwise they would be treated just like any other neutral country. The reason for the different treatment was merely that certain countries were willing and able to forbid their vessels from carrying contraband to England, whereas others could not or would not do so because of their political attitude or their economic dependence on England. Therefore it is not a question of terrorizing the smaller neutrals and sparing the bigger ones, but of preventing traffic in contraband and sparing legal commercial trade. Since no general legal maxim exists which compels the belligerent power to treat all neutral powers alike, no objection can be raised on the basis of international law. It would indeed be strange if here in the name of humanity the demand were made that German submarines should have sunk even those ships which they did not want to sink at all.

The Tribunal saw from the standing war orders submitted that during the further course of the war even the small powers, which were the only neutral ones left, could by virtue of shipping agreements cross the operational area along certain routes without being molested by German submarines. In this way for instance Sweden and Switzerland as well as Turkey could carry on their maritime trade during the entire war.

Outside the operational area announced the German submarines were never permitted to attack neutral ships. In this respect the Naval Command refrained from waging any submarine warfare against neutral merchant shipping, since enemy air surveillance made stopping and searching too dangerous for German submarines. Against the disadvantage of submarine warfare within the operational area, the neutrals had, outside the area, the advantage of remaining completely unmolested, even if they were shipping contraband goods, which fact in itself made them liable to be sunk after being stopped. Thus a neutral vessel outside the operational area was only in danger if it behaved in a suspicious or hostile way or if it was not clearly marked as neutral. The German Naval Operations Staff again and again called the attention of the neutral powers to this necessity.

In this connection I must mention the order of 18 July 1941, according to which United States vessels within the operational area were placed on an equal basis with all other neutrals, that is to say, could be attacked without warning. The Prosecution

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have seen in this special proof that the submarine warfare against neutrals was wage* in a "cynical and opportunist" way. If this is meant to convey that it was influenced also by political considerations, then I am ready to admit it. But I do not consider this a reproach; since war itself is a political instrument, it is in keeping with its essence if individual parts of it are placed under the leadership of politics. In particular, no reproach should be seen in the orders of the German Command as regards the utilization of submarines against the United States, because they precisely furnish proof of the efforts to avoid any conflict with the United States.

As the Tribunal knows from documents and the testimonies of witnesses, the ships of the United States during the first years of the war were exempt from all measures of naval warfare, and this applied even when contrary to the original American legislation they sailed into the U.S.A. combat zone and thus into the German operational area in order to carry war materiel to England.

This policy was not changed until, in addition to the many unneutral acts of the past, the active employment of the American Navy had been ordered for the protection of British supply lines.

Everybody is familiar with the statements of President Roosevelt, which he made at that time, about the "bridge of boats over the Atlantic" and the support which should be given to England "by every means short of war." It may be considered a matter of doubt whether the "realistic attitude"* which the U. S. naval and air forces were ordered to take at that time did not already constitute an illegal war, as has been claimed just now on the part of the Americans.**

At least the United States had abandoned her neutrality and claimed the status of a "nonbelligerent," which also presented a new aspect of international law in this war. If in this connection one wishes to raise the charge of cynicism, it should hardly be directed against the orders which were issued as a justified reaction to the American attitude.

I have endeavored to present to the Tribunal a survey of the essential orders issued, and to say a few things with respect to their legality. No doubt there were instances of attacks on ships which according to the orders mentioned should not have been attacked. There are just a few such cases, and some of them have been brought up at this Trial. The best known concerns the sinking of the British passenger vessel Athenia on 3 September 1939 by U-30 under the command of Kapitanleutnant Lemp. The sinking of this

* Admiral King, Report of the American High Command.

** John Chamberlain, "The man who pushed Pearl Harbor," Life, of 1 April 1946.

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ship was due to the fact that the commander mistook it for an armed merchant cruiser.

If the Tribunal should still hesitate to believe the concurring statements of all the witnesses heard here on this critical instance, which was used especially for propaganda purposes, these doubts ought to be removed by the behavior of the same commander in the days and weeks following the sinking. Kapitanleutnant Lemp, as the log of U-30 at that time shows, adhered strictly to the Prize Ordinance, and from this log I was able to submit several examples of the fair and gentlemanly conduct of German commanders even when by such conduct they greatly endangered their submarines.

Only on the return of U-30 from the operations at the end of September 1939 were the Commander of U-boats and the Commander-in-Chief of the Navy fully informed of the whole affair of the sinking of the Athenia. Upon his return the commander immediately reported to the Commander of U-boats the mistake which he himself meanwhile recognized as such, and was sent to Berlin to report in person.

Dr. Siemers will deal with the political aspect of this matter. I only mention the military occurrences. Admiral Doenitz received the following communication from the Naval Operations Staff:

(1) The affair was further to be dealt with politically in Berlin.

(2) Court-martial proceedings were not necessary since the commander acted in good faith.

(3) The entire matter was to be kept in strict secrecy.

On the grounds of this order the Commander of U-boats gave orders that the report on the sinking of the Athenia be deleted from the log of U-30 and that the log be complemented in such a manner as to make the absence of the entry inconspicuous. As the Tribunal has seen, this order was not adequately carried out, obviously for the reason that the officer in charge had no experience whatever in such dealings.

The Prosecution pointed to this changing of the War Diary as a particularly criminal act of falsification. This, it seems to me, is based on a misunderstanding of the facts. The War Diary is nothing but a military report by the commander to his superiors. What occurrences should or should not be included in reports of this kind is not decided by any legal or moral principle, but is solely a matter of military regulations. The War Diary was meant to be secret; however, it Divas-like many secret matters-accessible to a very large group of people. This is already apparent from the fact that it had been circulated in eight copies, of which some were intended not only for higher staffs but for schools and for training flotillas as well. Therefore, whenever an occurrence was to be restricted to a

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small group of individuals, it was not to be reported in the War Diary. Since the sequence of the War Diary continued, the missing period had to be filled in with another, necessarily incorrect, entry. I can see nothing immoral in such a measure, much less anything illegal. As long as there is secrecy in time of war-and that is the case in all countries-it means that not all facts can be told to everybody, and therefore one sometimes may have to make incorrect statements. A certain moral offense could perhaps be seen in such action in the case of the Athenia if thereby a falsification for all times had been intended. This, however, was by no means the case. The commander's report with regard to the sinking of the Athenia was of course submitted in the original form to the immediate superiors, the Commander of U-boats and the Commanderin-Chief of the Navy, and kept in both their offices. I should like further to say briefly that a general order not to enter certain happenings into the War Diary has never existed.

The Athenia case brings another fact to light and that is the manner in which the compliance of U-boat commanders with any orders issued was enforced. In spite of the justified conception of the Naval Operations Staff that the commander acted in good faith, he was put under arrest by Admiral Doenitz because by exercising greater caution he perhaps might have recognized that this was not an auxiliary cruiser. Punishment was meted out in other cases, too, where orders had been mistakenly violated.

The Tribunal is familiar with the wireless communications of September 1942, by which, on occasion of the sinking of the Monte Corbea, the commander had been informed that upon his return he would have to face court-martial proceedings for violation of orders regarding conduct toward neutrals. All commanders received notice of this measure.

The Tribunal will please consider what such strict warnings mean to a commander at sea. If the directives of the American manual for courts-martial were to be considered as a basis, then court-martial proceedings against of fleers should only be initiated in cases where dismissal from the service seems warranted.* That should never be the case when the violation of an order is an accidental one. For a commanding officer who is supposed with his soldiers to wage war and gain successes, it is extremely hard and, in fact, under certain circumstances actually a mistake to have one of his commanders on his return from a successful operation tried before a court-martial because of a single slip which occurred in that action.

Every military command acts in accordance with these principles. In this connection I will refer to the unreserved recognition which

* Manual for Courts Martial U. S. Army, 1928, Page 10.

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the commander of the British destroyer Cossack received for setting free the prisoners of the Altmark in spite of the incidents which occurred during this action, which were probably regretted by the British too.

I had to go into those matters in order to meet the accusation that all sinkings carried out against orders were afterward sanctioned by the High Command in that no drastic steps were taken against the commanders. Especially in the field of submarine warfare compliance with orders issued was insured by the continuous personal contact of the commanders with their commanding officer. Upon conclusion of every enemy operation an oral report had to be made, and all measures taken were subjected to sharp criticism, while instructions were given at the same time for future behavior.

The German submarines undertook many thousands of combat operations during this war. In the course of these, orders issued were violated only in very rare instances. If one considers how difficult it is for a submarine to establish its exact position and the boundaries of an operational area, and to distinguish an armed from an unarmed ship, a passenger ship from a troop transport, or a neutral from an enemy ship, the low number of sinkings considered unjustified by the Germans, too, must be taken as proof of an especially effective and conscientious leadership.

After this discussion of the factual development of German submarine warfare, I still have to deal with the accusations built up by the Prosecution from certain preparatory deliberations on the subject of the organization of submarine warfare.

Simultaneously with the combat instructions of 3 September 1939, whereby German submarines were ordered to adhere in their operations strictly to the Prize Ordinance, an order was prepared in the Naval Operations Staff decreeing action without warning in case the enemy merchantmen were armed. In addition to this, during the first days of the war there was an exchange of correspondence with the Foreign Office on the subject of declaring prohibited zones.

The Prosecution looks upon these two documents as proof of the intention to conduct a war contrary to international law from the very start. I, on the other hand, regard these same documents as proof of the fact that the Naval Operations Staff was fully unprepared for a war with England, and that it was only when the British had already declared-war that they began to set about thinking in the most elementary manner on how such a war should be conducted. Since neither surprise attacks on armed merchant vessels nor the declaration of prohibited zones violate international law,

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a belligerent might well be allowed to consider after the outbreak of war if and when he wants to make use of these opportunities. As we know from the aforementioned of the British Admiralty, as early as 1938 a thorough study of all the possibilities resulting from the war upon commercial shipping had been made and elaborated for practical purposes.

This same standpoint holds good also for the memorandum of the Naval Operations Staff of 15 October 1939, which has been quoted several times by the Prosecution. Its very heading shows that it is a study: "Possibilities for the Intensification of Naval Warfare."

In accordance with the heading, the memorandum provides an examination of the military demands for effective naval warfare against England, and of the legal possibilities for fulfilling these demands. The result was the order of 17 October 1939, decreeing the immediate use of arms against all enemy merchant vessels, since, as we have already shown, they had been armed and incorporated into the military system. Further intensifying measures were for the time being recognized as not yet justified, and the suggestion was made to wait and see what the further conduct of the enemy would be.

One sentence in this memorandum arouses special suspicion on the part of the Prosecution. It says that naval warfare must, as a matter of principle, be kept within the framework of existing international law. However, measures which might result in successes decisive for the war would have to be taken even if new laws of naval warfare were created thereby.

Does this really constitute a renunciation of international law? Quite the contrary. A departure from existing international law is made dependent only on two quite limited conditions: (1) A military one, namely, that measures are involved which are of decisive importance for the outcome of the war, that is, also of importance in shortening the war;* (2) a moral one, namely, the nature of the new measures makes them suitable for incorporation into the new international law.

The memorandum itself states that this would be possible only within the framework of the laws of military combat ethics and a demand is therefore made for rigid adherence without any exceptions to these ethics of warfare. Under these conditions there can hardly be any doubt as to the possibility of formulating new international laws.

· In this connection I mention the extensive literature dealing with the right of self-preservation in cases of urgent necessity. The surprise attack on the Danish fleet, 1807, as well as the hunger blockade against Germany are based on that

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The well-known expert on international law, Baron von Freytagh-Loringhoven says, and I quote:

". . . always been war which has given its strongest impulses to international law. Sometimes they have been of a positive, sometimes of a negative nature. They have led to further development of already existing institutions and norms, to the creation of new forms or the reversion to old ones, and not infrequently also to failures."*

Especially in this Trial, which itself is supposed to serve the development of new international law, the possibility of such a development cannot be denied.

THE PRESIDENT: We will adjourn.

[A recess was taken.]

THE PRESIDENT: The Tribunal will not sit in open session after 1 o'clock tomorrow, Wednesday; it will sit in closed session during the afternoon. The Tribunal will not sit in open session on Saturday; it will sit in closed session on Saturday morning.

FLOTTENRICHTER KRANZBUEHLER: Before the recess I was

speaking about the possibilities of development of naval law.

The American prosecutor, Justice Robert Jackson, in his report to the President of the United States with regard to this problem, expressed his opinions as follows, and I quote:**

"International law is not capable of development by legislation, for there is no continuously sitting international legislature. Innovations and revisions in international law are brought about by the action of governments, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations."

These words carry a full justification of the clause objected to by the Prosecution in the memorandum of the Naval Operations Staff'. And the fact that the Allies also deemed war-deciding measures to be justified even though they were contradictory to hitherto valid concepts of international law is proved by the use of the atomic bomb against Japanese cities.

Since I am interested in justifying the actual measures taken by the Naval Command in Germany, I have not dealt with the point as to which one of the two admirals accused carried greater or lesser

responsibility for one or another. As a formal basis in nearly all cases a Fuehrer decree exists. Both admirals, however, stated here that they considered themselves fully responsible for all orders of naval war which they gave or transmitted. I should like to add to that only two remarks.

As far as political considerations were decisive for orders of the U-boat war, the Commander-in-Chief of the Navy had no influence on them. The Commander of U-boats had not been notified of such considerations any more than of the political settlement of incidents which arose through U-boats.

My second remark concerns the question as to what extent a military commander may be held responsible for the accuracy of legal reasonings which he does not indulge in himself, but which are delivered to him by the leading experts of his country, who after all are not just small-town lawyers. In addition, the Commander of U-boats had only tactical tasks and his staff contained only a few officers, none of whom was qualified to examine questions of international law of the import mentioned here. He therefore had to rely on the fact that the orders issued by the Naval Operations Staff were examined as to their legality and were in order. That is probably handled in a like manner in every navy in the world. A professional seaman is not competent for legal questions; with this reason the Tribunal cut off a remark by Admiral Doenitz about a legal question. This condition must, however, be considered in applying the principle which the German Supreme Court, during the war crimes trials after the first World War, formulated in this regard, and I quote: '`The culprit must be conscious of the violation of international law by his actions."

This appears to me to be equally just, as I should deem it to be incompatible with the demands of justice if soldiers were charged with a criminal responsibility in deciding legal questions which could not be settled at international conferences and are hotly disputed among the experts themselves.

In this connection I should like to mention that the London Pact of 1930 did not from the Root Resolution of 1922 adopt the principle of criminal prosecution for violations of the rules of U-boat warfare. The five naval powers participating in this conference apparently came to the conclusion that the problems of naval warfare cannot be solved by means of penal law. And this fact applies fully today, too.

I am now coming to the second basic charge of the Prosecution- intentional killing of shipwrecked crews. It is directed only against Admiral Doenitz, not Admiral Raeder. The legal basis for the treatment of shipwrecked crews for those ships which are entitled to the protection of the London Agreement of 1936 is laid down in the

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agreement itself. There it says that, before the sinking, crews and passengers must be brought to safety. This was done by the German side, and the difference of opinion with the Prosecution concerns only the question already dealt with, namely, which ships were entitled to protection under the agreement and which were not.

In the case of all ships not entitled to protection under the agreement, sinking should be considered a military combat action. The legal basis, therefore, with regard to the treatment of shipwrecked crews, in these cases is contained in the Hague Convention concerning the Application of the Principles of the Geneva Convention to Naval Warfare of 18 October 1907, although it was not ratified by Great Britain. According to this, both belligerents shall after each combat action make arrangements for the search for the shipwrecked, as far as military considerations allow this. Accordingly the German U-boats were also bound to assist the shipwrecked of steamers sunk without warning as long as by doing so, first, the boat would not be endangered and, secondly, the accomplishment of the military mission would not be prejudiced.

These principles are generally acknowledged. In this connection I am referring to the order of the British Admiralty, for example, and I quote: "No British ocean-going merchantman shall aid a ship attacked by a U-boat."

I further refer to the affidavit of Admiral Rogge, according to which in two cases, personally witnessed by him, nothing was done by a British cruiser to rescue the shipwrecked, because U-boats were assumed to be nearby, once correctly so and once erroneously. A higher degree of self-endangering would appear to apply to U-boats as compared with other types of vessels because of their exceptional vulnerability.

As to the second exception to rescue duty, namely, prejudice to the military mission, the U-boat is also subject to special conditions. It has no room to take guests aboard. Its supply of food, water, and fuel is limited and any considerable expenditure will prejudice its combat mission. Furthermore, it is typical for the U-boat that the combat mission may call for an unobserved attack and therefore exclude rescue duty. In order also to present an opinion about the tactics of the opposite side, I quote from the statement of Admiral Nimitz:

"In general U.S. submarines did not rescue enemy survivors if it meant an unusual additional danger for the submarine or if the submarine was prevented from further carrying out its mission."

In the light of these principles I will briefly deal with rescue measures by U-boats until the autumn of 1942. The basic order

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was issued by the Naval Operations Staff on 4 October 1939, and specified rescue whenever possible from the military standpoint. This was temporarily restricted by Standing War Order 154. This order, issued in December 1939, applied to the small number of submarines at that time operating immediately of3? the British coast. It may be seen from the order itself that every paragraph deals with combat in the presence of enemy escort and patrol forces. The last paragraph therefore also deals only with this aspect and serves the warranted purpose of protecting submarine commanders against the dangers to which, under the existing circumstances, they would in every case expose their boats by rescue measures. When after the Norwegian campaign the scene of activity of the submarines gradually shifted to the open Atlantic, this order became outdated, and it was finally canceled in the autumn of 1940. In the period that followed, the German submarine commanders carried out rescue measures whenever they could assume responsibility from the military standpoint. This is known to the Tribunal from numerous specific examples cited here, contained both in the statements of submarine commanders submitted here and in the war diaries. This situation was changed through Admiral Doenitz's order of 17 September 1942, in which he forbade rescue measures on principle. The decisive sentences are:

"The rescue of members of the crew of a ship sunk is not to be attempted. Rescue is contradictory to the most primitive demands of warfare, which are the annihilation of enemy ships and crews."

It has been disputed by the Prosecution that this actually prohibits rescue. It looks upon this order as a hidden provocation to kill the shipwrecked, and it has gone through the press of the world as' a command for murder. If any accusation at all has been refuted in this Trial, then it seems to me to be this ignominious interpretation of the order mentioned above.

How was this order brought on? Beginning with June 1942, the losses of German submarines through the Allied air force rose by leaps and bounds, and jumped from a monthly average of 4 or 5 during the first 6 months of 1942 to 10, 11, 13, finally reaching 38 boats in May 1943. Orders and measures from the command of submarine warfare multiplied in order to counter those losses. They were of no avail and every day brought fresh reports of air attacks and losses of submarines.

This was the situation when on 12 September it was reported that the heavily armed British troop transport Laconia with 1,500 Italian prisoners of war and an Allied crew of 1,000 men and some women and' children aboard had been torpedoed. Admiral

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Doenitz withdrew several submarines from current operations for the purpose of rescuing the shipwrecked, no distinction being made between Italians and Allies. From the very start the danger of enemy air attacks filled him with anxiety. White the submarines during the following days devotedly rescued, towed boats, supplied food, and so forth, they received no less than three admonitions from the Commander to be careful to divide the shipwrecked, and at all times to be ready to submerge. These warnings were of no avail On 16 September one of the submarines displaying a Red Cross flag and towing life boats was attacked and considerably damaged by an allied bomber; one lifeboat was hit and losses caused among the shipwrecked. Following this report the Commander sent three more radio messages with orders immediately to submerge in case of danger and under no circumstances to risk the boats' own safety. Again without avail. In the evening of that day, 17 September 1942, the second submarine reported that during rescue actions it had been taken unawares and bombed by an airplane.

Notwithstanding these experiences, and in spite of the explicit order from Fuehrer headquarters not to endanger any boats under any consideration, Admiral Doenitz did not discontinue rescue work, but had it continued until the shipwrecked were taken aboard French warships sent to their rescue. However, this incident was a lesson. Due to enemy air reconnaissance activity over the entire sea area, it was simply no longer possible to carry out rescue measures without endangering the submarine. It was useless to give orders over and over again to commanders to undertake rescue work only if their own boats were not endangered thereby. Earlier experiences had already shown that their human desire to render aid had led many commanders to underestimate the dangers from the air. Yet it takes a submarine with decks cleared at least one minute to submerge on alarm, white an airplane can cover 6,000 meters in that time. In practice this means that a submarine engaged in rescue action when sighting a plane has not time enough to submerge.

These were the reasons which caused Admiral Doenitz directly after the close of the Laconic incident to forbid rescue measures on principle. This was motivated by the endeavor to preclude any calculation on the part of the commander as to the danger of air attack whenever in individual cases he should feel tempted to undertake rescue work.

It is difficult to judge the actual effects of this order. From 1943 on about 80 percent of the submarines were fighting against convoys, where even without this order rescue measures would have been impossible. Whether or not some commander would have, without

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this order, again risked concerning himself with the lifeboats, nobody can tell with certainty. As is known, an order existed since the middle of 1942 to bring in as prisoners, if possible, captains and chief engineers. Over a period of almost 3 years this order was carried out not even a dozen times, which proves how high the commanders themselves estimated the danger to their boats in surfacing. On the other hand, nothing was more distressing for members of the crews of torpedoed ships than to be taken aboard a U-boat, because of course they knew that their chance of being rescued was much better in a lifeboat than on a U-boat which, with a probability of at least 50 percent, would not return to its base. Therefore, I arrive at the conclusion, as did Admiral Godt, that the Laconia order may have cost the lives of some Allied seamen just as it may have saved the lives of others. Be that as it may, in the face of the enormous losses by the enemy air forces the order forbidding rescue was justified. It was completely in line with the basic idea of the precedence of one's own vessel and of one's own task, as prevailing in all navies; a principle which I believe I have proved as commonly valid in view of existing British and American orders and practices.

How then can the Prosecution consider this order an "order to murder"? Grounds for this are said to be furnished by the discussion between Hitler and the Japanese Ambassador, Oshima, in January 1942, in which Hitler mentioned a prospective order to his U-boats to kill the survivors of ships sunk. This announcement, the Prosecution infers, Hitler doubtless followed up, and Admiral Doenitz carried it out by the Laconia order. Actually, on the occasion of a report on U-boat problems which both admirals had to make in May 1942, the Fuehrer suggested that in future action should be taken against the shipwrecked, that is, to shoot them; Admiral Doenitz immediately rejected this sort of action as thoroughly impossible and Grossadmiral Raeder unreservedly agreed with him. Both admirals specified the improvement of torpedoes as the only permissible way to increase losses among the crews. In the face of the opposition of both admirals Adolf Hitler dropped his proposal, and following this report no order whatever was given concerning shipwrecked crews, let alone concerning the killing of the shipwrecked by shooting. The destruction of the crews through improved efficiency of the torpedoes is an idea which for the first time cropped up during this discussion in May 1942, and which recurs in later documents of the Naval Operations Staff. I must therefore express myself on the legality of such a tendency. According to classical international law the destruction of combatants constituted a legal aim of war actions, not however that of

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noncombatants.* In view of the development of the last wars one may be doubtful whether this classical theory still has any validity. I am inclined to regard the hunger blockade as the first important infringement of this theory, which by cutting off all food supply was aimed at the civilian population, therefore the noncombatants of a country. The victims of this during the first World War were estimated at 700,000 people.** Although this blockade was frequently acknowledged to be inadmissible according to international law,*** it was nevertheless practiced, and therefore it amounts to an infringement of the principle of protection for noncombatants against war measures.****

The second great infringement was brought on by aerial warfare. I do not wish to discuss the unsolvable question of who started it, but only to state the fact that war from the air, at least during the two final years, was aimed against the civilian population. If in dozens of attacks on residential quarters of German cities thousands or tens of thousands of civilians were among the victims while soldiers numbered only a few dozen or a few hundred, then nobody can assert that the civilian population was not included in the target of the attack. The mass dropping of explosives and incendiary bombs on entire areas does not permit of doubt, and the use of the atomic bomb has produced final evidence thereof.

In view of the hundreds of thousands of women and children who in this manner miserably perished in their houses by being buried, suffocated, or burnt to death, I am surprised at the indignation of the Prosecution about the loss of about 30,000 men who lost their lives in war areas on ships which were armed carried war material, and often enough bombs destined for German cities. Moreover, most of these men died in combat, that is, by mines, aircraft action, and especially in attacks on convoys, all actions which according to British conception, too, were lawful.

· Not always acknowledged by English authors. Compare for instance A. C. Bell, A History of the Blockade of Germany, et cetera, London, 1937, Page 213: "The assertion that civilians and the Armed Forces have been treated only since 1914 as a uniform belligerent body is one of the most ridiculous ever made."

** Grenfell, The Art of the Admiral, London, 1937, Page 45: "By the early part of 1918, the civil population of Germany was in a state of semistarvation, and it has been calculated that, as a result of the blockade, over 700,000 Germans died of malnutrition."

*** See also protest of the Soviet Government to the British Ambassador of 25 October 1939, printed as Number 44 in "Urkundenz um Seekrlegs-recht," Volume I, edited by the High Command of the Navy.

**** See for instance Wheaten's International L a w, 5th Edition, Page 727, Liddell Hart, "The Revolution in Naval Warfare," Observer of 14 April 1946. I

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The German Naval Operations Staff regarded these men as combatants. The British Admiralty takes the opposite standpoint in its orders to the merchant navy. In this connection Oppenheim, the foremost British expert on international law, before the outbreak of the first World War still maintained that the crew should be put on the same level as combatants.* He points to the centuryold practice, especially followed in Britain, of taking the crew of merchant ships prisoner of war. He finds this principle confirmed in the 11th Hague Convention of 1907, and looks upon the crew of the merchant navy as potential members of the navy. The legal position in their defense against a warship is described by him as "entirely analogous to the position of the population of an unoccupied territory which takes up arms in order to combat invading troops." It is well known that such a force is considered a combat unit. According to Paragraph 2 of the Hague Convention on Land Warfare, they are considered combatants irrespective of whether or not the individual actually makes use of weapons. Accordingly, Oppenheim also refused to make any distinction among the crew, between men who are enrolled tin the enemy navy and men who are not. '

If this interpretation was already valid before the first World War, it certainly was unassailable in the year 1942, at a time when there were no more unarmed enemy ships and when the neutrals who happened to enter the zone of operations were exclusively moving in enemy convoys, which made them, just like enemy ships, integral parts of the enemy forces. All of them had lost their peaceful character and were considered as being guilty of active resistance. Active resistance against acts of war is not permitted to any noncombatant in land warfare and results in his being punished as a franc-tireur. And in naval warfare should a ship's crew be entitled to the combatant's privileges, without suffering any of his disadvantages? Should a crew be permitted to participate in every conceivable act of war, even including the use of guns and depth charges, and yet remain noncombatant? Such an interpretation renders illusory the entire concept of a noncombatant. Nor does it make any difference whether or not only part of the crew has anything to do with the firing of the guns. The ship as an entity represents a fighting unit, and on board a-merchant ship more people actually had something to do with the handling of weapons than on board a submarine. These men were trained under military supervision, they fired the guns along with gunners of the navy, and the use of their weapons was regulated according to the

Admiralty's orders.* The crews of ships were accordingly combatants and thus it was legitimate for the adversary to try to destroy them by the use of arms.

This explains at the same time the sentence about the destruction of ships and crews, which is considered by the Prosecution as a specific indication that the Laconia order bore the character of a murder order. There has been enough discussion concerning the meaning of this sentence as an argument for forbidding rescue work. It may, taken out of its context, give cause for misunderstanding. But whoever goes to the trouble of reading the entire order cannot misunderstand it. To me the decisive crime appears to be that, in accordance with its origin, it was never meant to be a murder order and was not interpreted as such by the commanders. This is proved by the declarations and statements of dozens of submarine commanders. From its context it could not have been interpreted as a murder order. In fact in the next paragraphs it was explicitly ruled that so far as possible certain members of the crew should be brought back as prisoners. Surely one must credit a military command with enough intelligence, when giving such a murder order at all, to remain from additional orders to conserve a number of witnesses of its crime.

Contrary to the Prosecution, the British Admiralty clearly did not believe in such a murder order. Otherwise it would not have given orders to its captains and chief engineers to escape capture by German submarines by camouflaging themselves as plain sailors while in the lifeboats. According to the interpretation by the Prosecution, such an order would indeed have meant that the captain would have been killed by the submarine along with all the other members of the crew.

Furthermore, the Prosecution have quoted the order to attack so-called "rescue ships" as evidence of the intention to kill shipwrecked people. However, only the individual who is either in the water or in a lifeboat is shipwrecked. A shipwrecked combatant who is again on board a ship is nothing but a combatant, and accordingly the legitimate aim of an attack. I have already pointed out, during the hearing of evidence, the shooting down of German sea rescue planes with intent to kill the rescued airmen, in order to show that the enemy acted according to the same conception.

I shall discuss as briefly as possible the depositions of witnesses on which the Prosecution tries to base its interpretation of the Laconia order. In my opinion, the deposition of Oberleutnant zur See Heisig, as made here before the Tribunal, is irrelevant. His earlier affidavit is wrong, and we know why from the witness Wagner. Here, before the Tribunal, Heisig has explicitly denied that in Grossadmiral Doenitz' address to the cadets of the submarine school in September 1942 there was any reference to the effect that shipwrecked people should be fired upon. Rather did he personally draw this conclusion from the passage that total war must be waged against ship and crew, with added reference to air bombing. His interpretation may be explained by the fresh impression of the bombing of Lubeck, which he had just experienced. The other listeners did not share this interpretation; in fact, it did not even occur to them. This is evident from the deposition of three persons who heard the address. The further assertion of Heisig, that an officer unknown to him had instructed him on an unknown occasion that the men should be ordered below deck when exterminating shipwrecked people, I consider as an improvisation of his imagination, which appears to be easily excited. If this had really been the case, then so astonishing an occurrence, which would have been in contradiction to all training principles of the Navy, must have made such an impression on a young officer that he would have retained some recollection of the full circumstances of such an instruction.

The testimony of Korvettenkapitan M5hle must be taken much more seriously, because he had-there is no doubt about it-at least hinted to a few submarine commanders that the Laconia order demanded, or at least approved of, the killing of shipwrecked. Mohle did not receive this interpretation either from Admiral Doenitz himself, nor from the Chief of Staff nor his chief assistant, Fregattenkapitan Hessler; that is to say, from none of the officers who alone would have been qualified to transmit such an interpretation to the chief of a flotilla.

How Mohle actually arrived at this interpretation has in my opinion not been explained by the Trial. He maintains that it was due to the fact that Korvettenkapitan Kuppisch from the staff of the Commander of U-boats had told him the story of U-386, a boat whose commander had been reprimanded for not having shot Allied airmen drifting in a rubber dinghy. This explanation of Mohle's cannot be correct. It is proven beyond any doubt by the War Diary and by witnesses that the commander of U-386 had been reprimanded because he did not take on board the airmen concerned and bring them back. The whole affair concerning U-386, furthermore, took place a year after the Laconia incident in September

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1943 and Korvettenkapitan Kuppisch, who was supposed to have told it, had already been killed in action as a U-boat commander in August 1943. It is not my task to try to explain how Mohle actually acquired his knowledge about the Laconia order. One thing at any rate has been proven, namely, that Admiral Doenitz and his staff had not caused this briefing to be given, nor did they know anything about it. Considering the frequent personal contacts between the U-boat commanders and the staff of the Commander of U-boats this can only be explained by the fact that the few commanders whom Mohle thus briefed did not take his words seriously.

Is Admiral Doenitz thus responsible for the interpretation of the Laconia order as given by Mohle? Criminal responsibility in the first place presupposes guilt, that is to say, possibility of foreseeing the result. Considering the close contact with his flotilla chiefs and commanders, for whom alone the Laconia order was intended, Admiral Doenitz could not foresee that a flotilla chief might give such an interpretation to that order without taking any steps to be enlightened by the Commander of U-boats. Such conduct is beyond anything that could reasonably be expected.

Therefore all guilt is excluded. Criminal responsibility requires another criterion, namely, that results shall be proven. This also is entirely lacking. The Prosecution have not even made a serious attempt to prove that any one of the commanders briefed by Mohle in that sense ever actually fired on shipwrecked crews. As far as we are informed, such a thing occurred only once in this war on the German side in the case of Kapitanleutnant Eck. It is significant that this case was presented not by the Prosecution, but by the Defense. For the conduct of Eck has nothing whatsoever to do with the Laconia order as the Prosecution desires to construe it. He was not concerned with the destruction of human lives but with the removal of wreckage and floats from which the Allied airplanes could deduce the presence of a German U-boat in the area. For this conduct he and two of his officers were sentenced to death, and thereby punished with a severity which less agitated times will no longer comprehend.

The two cases presented by the Prosecution, where shipwrecked crews allegedly were shot at, are so obviously unsuited to prove this accusation that I need not deal with them any further. The testimony about the sinking of the Noreen Mary bears the stamp of phantasy in various points, and in the case of the attack on the Antonica the intention to destroy shipwrecked people is out of the question because everything was over in 20 minutes and the night was dark.

I was in the fortunate position to be able to present to the Tribunal a compilation of the Naval Operations Staff concerning a dozen

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cases in which Allied forces had allegedly shot at German shipwrecked crews. It seems to me that every one of these instances is better than that of the Prosecution, and some appear rather convincing. I therefore attach all the more value to the sober attitude assumed by the Naval Operations Staff when transmitting their opinion on these cases to the Fuehrer's headquarters.

They point out that: (1) Part of the incidents occurred during combat operations; (2) shipwrecked men swimming in the water might easily be led to believe that a miss on other targets was aimed at them; (3) so far no written or verbal order for the use of arms against shipwrecked crews had been traced. I can only request that these principles be equally applied to the incidents presented by the Prosecution.

In the same written opinion to the Fuehrer's headquarters the Naval Operations Staff reject reprisals by destroying enemy shipwrecked; that was on 14 September 1942, 3 days before the Laconia order. Since the latter, as a radio order, came to the knowledge of the Naval Operations Staff, it would doubtlessly have been canceled in accordance with the opposite viewpoint just expressed to the Fuehrer's headquarters if it had been understood to be an order for the shooting of shipwrecked crews.

And now I am coming to the positive counterevidence against the opinion of the Prosecution. It consists in the first place of the number of rescued Allied sailors. This amounted, according to a survey by the British Minister of Transport in 1943, to 87 percent of the crews. Such a result is simply not compatible with an order for destruction. Furthermore, it has been established that Grossadmiral Doenitz in 1943, that is, after the Laconia order, rejected all consideration of action against shipwrecked crews.

In a written opinion given to the Foreign Of lice on 4 April 1943, a directive to the U-boats to take action against lifeboats or shipwrecked crews was considered impossible by the Naval Operations Staff, since that would go against the grain of every sailor. In June 1943 Grossadmiral Doenitz, on receiving reports from Korvettenkapitan Witt about British aviators having fired on shipwrecked crews of German submarines, most decidedly rejected the idea of attacking a foe rendered defenseless in combat, stating that this was incompatible with our principles of warfare.

Summing up, I am convinced that the assertion of the Prosecution that German submarines had received an order to murder shipwrecked men has been strikingly disproved. Grossadmiral Doenitz stated here that he would never have allowed the spirit of his submarine men to be endangered by mean acts. With losses ranging from 70 to 80 percent, he could only replenish his troops with volunteers if he kept the fight clean, in spite of its being tough.

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And if the Tribunal will recall the declaration of the 67 commanders in British captivity, it will have to admit that he created an attitude and morale which survived defeat.

I have endeavored to present to the Tribunal the most important facts supplemented by a number of legal considerations regarding naval warfare in order to clarify the most important problems to be discussed here from the point of view of the Defense. We arc concerned with the examination of the behavior of admirals in naval warfare, and the question of what is permissible according to international law is intimately connected with what is necessary according to the military standpoint. Therefore, in examining this particular point of the Indictment, I deeply regret that the Charter of this Tribunal deprives the accused officers of a privilege guaranteed to them as prisoners of war by the Geneva Convention namely, the passing of judgment by a military tribunal applying the laws and regulations binding on its own officers. According to Article 3 of the Charter, I am not allowed to question the competency of this Tribunal. I can therefore only request the Tribunal to make up for the unfairness that I see in the aforementioned article of the Charter by applying the same standards, where the military appreciation and moral justification of the actions of tines' German admirals is concerned, as the Tribunal would apply to admirals of their own countries. A soldier, out of practical known edge of the procedure in warfare as applied not only by his owe country but also by the adversary, is keenly sensitive to the dividing line between combat and war crimes. He knows that the interpretation of international law concerning what is allowed of forbidden in naval warfare is in the last resort governed by the interests of his country. An insular power like Great Britain having long and vulnerable sea lanes, has always looked upon these questions from a different angle than the continental powers. The attitude of the United States from the renunciation of submarine warfare by the Root Resolution of 1922 to unrestricted submarine warfare against Japan in 1941, reveals how a change in strategic position can entail a change in legal evaluation. No one can tell to what extent a changed strategic' position at sea will cause c modification of legal conception. No one can know to what degree the development of air forces and the efficacy of bombs will increasingly force navies under water and render obsolete al previous conceptions of submarine warfare.* For-a naval office: these are obvious reflections, and they should prevent a man o law from settling controversial questions of law and police pertaining to naval war at the expense of those whose professions duty it is to direct navies.

* Compare for instance "Submarines in the Atomic Era" in the New York Herald Tribune, European Edition, of 27 April 1946, Page 2.

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In the first World War German submarine warfare was accompanied by a storm of indignation. It seems significant to me today that the British historian, Bell, in a paper intended only for official use of the Foreign Of lice, judges the right to such indignation as follows:

"It is an old rule of military honor never to belittle the deeds of an enemy who has put up a stiff and brave fight. If this rule had been followed in England, the public would better appreciate the place which the war between submarines and commerce will occupy in the history of strategy and of war. It is unfortunate that the cries of terror as well as the unseemly insults of journalists were repeated by responsible people, with the result that the slogans 'piracy' and 'murder' entered the vocabulary and have engendered the corresponding feelings in the hearts of the people."*

I must now treat the other points of the Indictment against Grossadmiral Doenitz which are not concerned with naval war. To begin with, there is the charge of preparation of aggressive wars. It is known how much contradiction this very accusation has aroused on the part of professional officers of probably all Allied countries. In answer to such attacks in public, Justice Jackson formulated for the press (The Stars and Stripes, European Edition, 5 December i945) the ideas of the Prosecution regarding this subject as follows:

"I have made it clear that we do not prosecute these militarists because they served their country, but because they dominated it and led it into war. Not because they conducted the war; but because they have been driving to war."

If this standard is used, then for the defense of Admiral Doenitz against the charge of preparing aggressive wars I need only point to the result of the evidence. At the beginning of the war he was a relatively young commander; his only task eras the training and commanding of submarine crews; he did not belong to the General Staff in the meaning of the Indictment and did not participate in any of the addresses which were presented here as proof of war intentions. The charge that he had advocated the occupation of submarine bases in Norway is likewise disproved. The same applies to the allegation that in 1943 he had proposed an attack upon Spain in order to capture Gibraltar. The conquest of Gibraltar

* A. C. Bell, Historical Section, Committee of Imperial Defense, A History of the Blockade of Germany and of the Countries Associated with Her in the Great War 1914-1918 - The introduction contains the remark "This history is confidential and for official use only." (Quoted from the German edition by Bohmert, Die englische Hunger-blockade im Welthrieg, Essen, 1943).

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against the Drill of Spain was absolutely impossible and out of the question during the entire war, and especially so in 1943.

For Germany the war had already reached a stage of defense, even of dangerous setbacks, on all fronts at the time when Admiral Doenitz was appointed Commander-in-Chief of the Navy on 1 February 1943. This fact may be significant for his participation in the so-called conspiracy. The Prosecution is not very clear about the precise moment at which they want to fix the beginning of such participation. In the individual Indictment intimate connection with Hitler since 1932 is mentioned. This, however, is obviously an error. Admiral Doenitz did not become acquainted with Hitler until the autumn of 1934, on the occasion of the submission of a military report, and in the following years talked to him briefly and always only about military problems, altogether eight times, and never alone. Since, aside from this fact, the defendant never belonged to any organization which is accused of conspiracy by the Prosecution, I see no connection of any kind with this conspiracy prior to 1 February 1943.

All the more important is the question of the retroactive effects of joining the conspiracy, as has been illustrated by the British Prosecutor by the example of the perpetrators of railway sabotage. This idea of guilt, retroactive on past events, is very difficult for the German jurist to understand. The continental concept of law is reflected by the formulation of Hugo Grotius: "To participate in a crime a person must not only have knowledge of it but also the ability to prevent it."*

While the entire legal. concept of the conspiracy in itself represents a special creation of Anglo-Saxon justice in our eyes, this applies even more to the retroaction of the so-called conspiracy. A judgment laying claim to international validity, one which should be understood by the peoples of Europe and especially by the Germans, must be based upon generally recognized principles of law. This, however, is not the case regarding a retroactive guilt. Though such a legal construction may seem fitting in dealing with certain typical crimes, it seems to me entirely inapplicable in judging events such as are being discussed here.

Admiral Doenitz became the Commander-in-Chief of the Navy in the course of a normal military career entirely free of politics. The appointment was based upon the proposal of his predecessor, Grossadmiral Raeder, for whom his proven abilities in the guidance of U-boat warfare alone were the determining factor. Specific acceptance of the appointment was no more required than in the case of an appointment to any other military position. Admiral Doenitz

* Hugo Grotius, De jure pacis ac belli, Book II, Chapter XXI.

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entertained the sole thought, as any officer might well have done in a similar position, whether he would be equal to the task and whether he could accomplish it in the best interest of the Navy and of his people. All other considerations which the Prosecution apparently expected of him during this period, namely, as to the legitimacy of the Party Program and of the policy of the Party from 1922 on, as well as German internal and foreign policy since 1933, can be but fictitious; they have nothing to do with the facts. Fictions of such nature are not limited by time nor by reality. Is the responsibility for past measures on taking over a high position to extend only to acts of the present cabinet, or is it to extend to acts of former cabinets, and over what period? Is it to comprise only one's own internal and foreign policy or is it to include one's allies? Such considerations cannot be, refuted logically; however, they lead to unacceptable results and show the impracticability of the idea of retroaction regarding the so-called conspiracy.

To measure by exact standards the participation in such a conspiracy is difficult enough, if events not of a criminal but of a military and political nature are involved. Of what meaning are such concepts as "voluntary accession" and "knowledge of the criminal plan" when in times of greatest danger an officer assumes the task to prevent the collapse of his nation's maritime warfare?

Even the Prosecution seems to realize this. For, corresponding to their general idea, they attempt to link Admiral Doenitz with the conspiracy in a political way. This is accomplished by the assertion that he became a member of the Reich Cabinet by virtue of his appointment to the High Command of the Navy. This allegation is based upon the decree whereby the Commanders-in-Chief of the Army and of the Navy were invested with the rank of Reich Minister and upon the order of Hitler were to participate in Cabinet meetings.

It is evident that one is not actually a Reich minister merely by being invested with the rank of Reich minister. Also one is not a member of the Cabinet if one is only permitted to participate in it upon special orders. This obviously indicates that he was only to be consulted on technical matters, but never had authority to gain information about other departments, much less to give advice. One cannot, however, speak of a political task and a political responsibility without the existence of such an authority. For an activity as a minister all legal basis is lacking. According to the Reich Defense Law there existed for the entire Armed Forces but one minister, the Reich War Minister. This post remained unoccupied after the resignation of Field Marshal Von Blomberg. The business of the ministry was conducted by the Chief of the High Command of the Armed Forces. A new ministry was not created either for the Army or for the Navy. The Commanders-in-Chief of the Army and of the

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Navy therefore would have had to be ministers without. Since, however, they each headed a department, namely, the Army and the Navy, such an appointment would have constituted a contradiction to all legal customs of the State. The countersigning of all laws in which the minister participates according to his jurisdiction must be considered the basic criterion of all ministerial activity. There exists not a single law which was countersigned by the Commander-in-Chief of the Navy. I have demonstrated this to the Tribunal by the example of the Prize Ordinance. That is to say that, even applying the legal standards of a democratic system, the Commander-in-Chief of the Navy cannot be designated as a member of the Reich Cabinet, because he lacked all authority of participation in legislative acts and every collective responsibility for policies assumed. His task was, and remained, a military one even though for reasons of etiquette he was put on an equal basis in rank with other Reich ministers.

The Prosecution themselves realized that a Reich Government in the constitutional sense no longer existed during the war, and consequently stated that the actual governing was carried out by those who participated in the situation conferences at the Fuehrer's headquarters. As all witnesses examined here stated, we are concerned here with events of a purely military nature, where incoming reports were presented, military measures discussed, and military orders issued. Questions of foreign policy were only very rarely touched upon if they had any connection with military problems; they were, however, never discussed and no decision was rendered on them in these Fuehrer conferences on the situation. Internal policy and the security system were never on the agenda. Insofar as nonmilitary persons participated, they were attendants or listeners who gathered information for their respective departments.

The Reichsfuehrer SS or his deputy were present for. the command of the Waffen-SS, and during the last year of war also for the Reserve Army. Admiral Doenitz always participated in these Fuehrer conferences when he was at the Fuehrer's headquarters. Notes taken down by whoever accompanied him on all these meetings and discussions of the Commander-in-Chief are all in the possession of the Prosecution. As the Prosecution has not presented a single one of these notes from which it would appear that the Commander-in-Chief of the Navy participated in reporting on or in discussing and deciding affairs of a political nature, one can assume that such notes do not exist.

Thus the testimony of witnesses has been confirmed according to which the Fuehrer conferences had nothing whatever to do with governing in a political sense, but were exclusively an instrument of the military leadership. Therefore, an overall responsibility of

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Grossadmiral Doenitz for all events that occurred since 1943, which in the course of this Trial have been designated as criminal, certainly does not exist. Consequently, I shall deal only with those individual allegations by which the Prosecution tries directly to connect Admiral Doenitz with the conspiracy. I believe I am all the more justified to proceed in that manner, as a short time ago the Tribunal refused the cross-examination of witnesses in the Katyn case with the argument that no one was accusing Admiral Doenitz in connection with this case. I conclude, therefore, that at any rate in the eyes of the Tribunal he is only accused of such cases wherein he allegedly directly participated.

To begin with, this does not apply to the Fuehrer's order for the extermination of sabotage Commandos, dated 18 October 1942. The Prosecution has tried to establish that this order had been presented to Admiral Doenitz in detail, together with all possible objections, shortly after his assumption of the position of Commander-in-Chief of the Navy. It has failed to establish this assertion. In fact Doenitz, as he himself admits, did read or have presented to him the order in question in the autumn of 1942 in his capacity of Commander of U-boats, and in the same form in which the frontline commanders received it.

I do not wish to speak here of the circumstances which led to objections against this order on the part of the High Command of the Armed Forces. Indeed, all these circumstances could not be discernible to one who received this order at the front. For such a man it was a matter of reprisal against saboteurs who seemed to be soldiers, but did not fight according to the regulations which are binding upon soldiers. Whether such reprisals were admissible at all according to the Geneva Convention, and to what extent, could not be judged by, nor did that come within the competence of, the recipient of the order. Every superior officer, at any rate, probably recognized that the order not to grant any pardon, and to hand over such persons in certain cases to the SD, was in itself an infringement of the rules of war. However, since the essence of any reprisal is to avenge a wrong on the part of the enemy with a wrong on one's own part, this does not prove anything concerning the legitimacy or illegitimacy of the reprisal order. If no one but the leadership of the State is competent to order reprisals, then hundreds or thousands of German officers cannot be required today to have considered themselves also competent, and to have been presumptuous enough to verify orders whose actual and legal basis was entirely unknown to them. In this case the principle prevails, at least for the frontline commanders, that the subordinate may, when in doubt, rely on the order as given.*

* Hugo Grotius, De jure pacis ac bell, Book II, Chapter XXVI. Paragraph 4, "He can believe that in a matter of doubt he must obey his superior."

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Now, the Prosecution seems to be of the opinion that Admiral Doenitz a few months later, when he had become Commander-in-Chief of the Navy, had the opportunity and also the obligation to inform himself as to the basis of the Commando Order. This conception fails to appreciate the duties of a Commander-in-Chief of the Navy. He has to wage naval war. The whole German naval war, especially submarine warfare, in the spring of 1943, owing to huge losses inflicted by the enemy air force, was on the verge of collapse. These were the worries with which the new Commander-in-Chief had to cope, in addition to an abundance of new problems concerning the Navy which were coming up. How can one require such a man as in the quietest of times to cope with an order of remote date, which had nothing whatever to do with naval warfare? On the contrary, a special paragraph explicitly excluded prisoners taken during naval operations.

A word or two on the channels of command. The naval units were under the control of the Naval Operations Staff only in those matters which belonged to the duties of the Navy, that is to say, naval warfare and coastal defense by artillery. Concerning so-called territorial questions they were not subordinate to the Naval Operations Staff but to the Armed Forces commander of the theater of war in which their basis was established. Orders concerning such measures of war on land were given without collaboration on the part of the Naval Operations Staff and their execution was not reported to them. Just as hardly anyone can think seriously of holding a general responsible for German submarine warfare, just as little, in my opinion, does it seem justified to hold an admiral responsible for orders given in land warfare.

Mr. President, I have come to the end of a section.

THE PRESIDENT: Certainly. We will break off.

[The Tribunal recessed until 1400 hours.]

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AfternoonSession

FLOTTENRICHTER KRANZBOHLER: Before the noon recess I was discussing the fact that units of the Navy were not subordinate to the Naval Operations Staff in matters affecting warfare on land.

This channel of orders for territorial questions also explains the complete ignorance of Admiral Doenitz and of his colleagues in the Naval Operations Staff about the delivery to the SD of the crew of the Norwegian motor torpedo boat MTB 345 after its capture by units under Admiral Von Schrader. As the testimony of witnesses and the records of the Oslo War Crimes Court show, the Naval Operations Staff only received an operational report about the capture of the boat and the number of prisoners. All other details, the discovery on board of material for sabotage, of civilian suits and sabotage orders, and the treatment of the crew as saboteurs according to the Commando Order were regarded as territorial matters, and as such dealt with by Admiral Von Schrader and the Armed Forces commander in Norway. The decision regarding the fate of the crew came from the Fuehrer's headquarters in reply to an inquiry from Gauleiter Terboven. Not only is there no proof that the Naval Operations Staff took part in those territorial questions, but this must in fact be considered refuted on the basis of the evidence submitted and the chain of command as explained.

I regard as the second attempt of the Prosecution to establish a participation in the alleged conspiracy to commit war crimes the submission of Admiral Wagner's minutes on the question of withdrawal from the Geneva Convention in the spring of 1945. The details are contained in Wagner's testimony, according to which the Fuehrer pointed out in a conference on 17 February that the enemy propaganda about the good treatment of prisoners of war was clearly having an influence on the units fighting on the Western Front, and that many cases of desertion to the enemy were being reported. He ordered that the question of a withdrawal from the Geneva Convention be investigated. In this way he wanted to convince his own soldiers that they could no longer rely upon receiving good treatment as prisoners of war, and thus create a countereffect against enemy propaganda. Two days later Hitler returned to this idea, although he then put forward another reason as the main one. He termed enemy warfare in the East and the bomb attacks on the German civilian population an outright renunciation of international law by the enemy, and he, for his part, also desired to free himself from all obligations by withdrawing from the Geneva Convention. Once more he asked for the opinion of the Armed Forces in this matter and addressed himself directly

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to Grossadmiral Doenitz, who did not answer. The attitude of the military leaders on this matter was unanimously negative.

On the next day, just before the daily conference on the situation, a 10-minute conversation took place between Grossadmiral Doenitz, Generaloberst Jodl, and Ambassador Hewel; in the course of this conversation Doenitz expressed his negative attitude. According to the notes of Admiral Wagner he said that "it would be better to take the measures considered necessary without previous announcement and, at any rate) to save face before the world." The Prosecution sees in this a readiness and a design to expose hundreds of thousands of Allied prisoners of war to arbitrary murder.

Admiral Doenitz himself has no recollection of this sentence. That is not surprising, as this is not a record, but a summary of a lengthy conversation in four sentences, the summary being worded on the day after the conversation by Admiral Wagner. This summary admits that the Grossadmiral disapproved of any "wild measures" which would put us in the wrong from the beginning, and considered justifiable only measures actuary warranted by the conduct of the enemy in each case. Since Wagner himself, as the author of the transcript, should know best what he meant thereby' I personally cannot add anything to this statement. The interpretation of the Prosecution is equally little supported by other circumstances. There was no question at all of keeping any measures secret; they had to be made known, regardless of whether they were meant to deter our own deserters or as reprisals. But Wagner's note does not mention any kind of concrete measures to be taken, and all witnesses present at this situation conference in Hitler's headquarters state that not a word was spoken on that subject. The idea of killing prisoners of war could not, therefore, have been present in the minds of any of the participants in this discussion which Wagner noted down.

Now it has come to light here, through the statements of the Defendants Ribbentrop and Fritzsche, that apart from the action for which he was preparing the ground during the discussion with the generals, Hitler had evidently at the same time planned a second action, in which only Goebbels and Himmler were to participate, and which by chance also came to Ribbentrop's knowledge. In this action the shooting of thousands of prisoners of war seems to have been contemplated as a reprisal against the air attack on Dresden. Hitler' very wisely, did not give the slightest indication of such a plan to the generals. This plan was not followed up and no reprisals were taken.

And now I return to the facts. It is a fact that Admiral Doenitz disapproved of the withdrawal from the Geneva Convention, and that Hitler, in view of the attitude of all military leaders who

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clearly opposed it did not follow up the idea any further. It is also a fact that no measures in violation of international law were taken by the Germans as a result of this remark which the Prosecution has criticized, and finally it is a fact that enemy sailors who were captured were sent to as prisoner-of-war camp of the Navy where they were treated in an exemplary way up to the last day of the war.

Whoever, in his own sphere, behaved as Admiral Doenitz did with regard to the prisoners of war of the Navy, cannot reasonably be charged with having thrown overboard al, standards of law and ethics applying to prisoners of war. A British commander has certified that when the prisoner-of-war camp of the Navy was taken over by British troops, all prisoners without exception said that they had been treated with fairness and consideration. The Tribunal will, no doubt, appreciate such unanimous expression of views, especially after what has come to light elsewhere in these proceedings with regard to the breakdown not only by Germans in the proper treatment of prisoners of war.

I shall now deal with the conspiracy to commit Crimes against Humanity, and I should like first of all to point out that Admiral Doenitz is not accused, under Count Four of the Indictment, of direct commission of Crimes against Humanity. Not even participation in the conspiracy to commit Crimes Against Humanity was contended in the detailed charges. That, I would say, is an admission that there was in fact no relation between his activity and the Crimes against Humanity of which the Prosecution has brought evidence. Nevertheless the Prosecution presented some documents which are apparently meant to prove his participation in the responsibility for certain Crimes against Humanity.

In judging these documents the most important question always is: What did Admiral Doenitz know of those alleged crimes? On this subject I should like to make one point clear. During the entire war he resided and lived at his staff headquarters, first on the North Sea coast, after 1940 in France, in 1943 for a short time in Berlin, and then in the Camp Koralle near Berlin. When he was at the Fuehrer's headquarters, he stayed with the naval staff there. Even outside his duty, his time was thus spent almost exclusively with naval officers. This may have been a weakness, but it is a fact which gives an additional explanation of his lack of knowledge of many events.

The fact that the defendant forwarded a proposal by the Ministry for Armaments to employ 12,000 men from concentration camps as workers in the shipyards proves, according to the Prosecution, that Admiral Doenitz knew and approved of the arrest of countless innocent people and their ill-treatment and extermination in concentration camps.

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He actually knew, of course, that concentration camps existed and he also knew that, apart from the professional criminals, people arrested for political reasons were kept there. As has already been explained here, the protective custody of political adversaries for reasons of safety is a measure adopted by all states, at any rate in an emergency, and knowledge of such a measure can therefore incriminate no one. However, an unusually high number of political prisoners-out of proportion to the number of the population-may stamp a regime as a regime of terror, but taking into account a population of o0 million in the fifth year of a grim war, even twice or three times the number of 12,000 men, which is the number mentioned by Admiral Doenitz, would not indicate a regime of terror, and the Prosecution will hardly claim that.

Admiral Doenitz stated here that the Commander-in-Chief of the Navy, as well as his collaborators and the overwhelming part of the German people, did not know of the abuses and killings that occurred in the concentration camps. All that the Prosecution has put forward against this are assumptions, but no proofs.

On this point, therefore, I will only refer to the statement of the then Minister for Armaments, Speer, according to which the inmates of concentration camps were much better off in industrial work than in camp, and that they tried with all means to obtain employment in such work. The proposal forwarded therefore did not imply anything inhuman, but rather the opposite.

The same request also contains a suggestion to take energetic measures against sabotage in Norwegian and Danish shipyards, where seven out of eight vessels under construction had been destroyed. If need be, the personnel should be entirely or in part employed as "KZ workers" because, so it says, sabotage of such dimensions can only occur if all the workers silently condone it. This therefore amounts to a proposition for security measures to consist in keeping the workers who actively or passively participated in sabotage in a camp close to the shipyard, so that their connections with sabotage agents would be cut off. I do not believe that juridical objections can be raised against such measures of security. According to the practice of all occupation troops even measures of collective punishment would be justified in such cases.*

Actually the measures proposed were never carried out and the Prosecution presumably presents them only to accuse Admiral Doenitz quite generally of a brutal attitude toward the inhabitants of occupied territories. For this same purpose it even refers to a statement of the Fuehrer at a conference on the military situation in the summer of 1944, according to which terror in Denmark must

* See Wheaton's International Law, 5th Edition, Pages 543-5

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be fought with counter/error. Admiral Doenitz's only connection with this statement was that he heard it and that his companion, Admiral Wagner, wrote it down. The Navy had no part in this statement, nor did it take any measures as a result of it.

In contrast to this line of evidence of the Prosecution, I should like to emphasize the attitude which Admiral Doenitz actually showed toward the population of the occupied territories. There is before the Tribunal a survey of the administration of justice by the naval courts in protecting the inhabitants of the occupied territories against excesses by members of the Navy. The survey is based on an examination of about 2,000 files on delicts and some of the judgments given are quoted with the facts and the reasons of the verdicts. Judging from that survey, one can fairly say that the naval courts protected the inhabitants in the West and in the East with justice and severity, including their lives as well as their property and the honor of their women. This administration of justice was constantly supervised by the Commander-in-Chief of the Navy as the Chief Court Administrator. Under terms of legal procedure it was his duty to confirm death penalties imposed on German soldiers.

The time at my disposal does not permit a more detailed discussion of some of these judgments. A phrase expressed in one of them may be taken to apply to all: All soldiers must know that in occupied territory as well the life and property of others will be fully safeguarded. This was the general attitude in the Navy, and the severity of the penalties inflicted proves how seriously it was taken.

I need only say a few words about the order issued in the spring of 1945, in which a German prisoner of war, a noncommissioned officer, was cited as an example, because he had unobtrusively and systematically done away with some Communists who were attracting attention to themselves in their prison camp. As Admiral Wagner recalled, it was actually an informer who was liquidated. But the facts were camouflaged as described in order to avoid giving enemy intelligence a clue to the camp and the person of the noncommissioned officer. There cannot be any doubt that this order in its true background could be justified in view of the enormous number of political murders which have been committed with the connivance or assistance of governments engaged in the war, the perpetrators being today extolled as heroes. I cannot, however, consider as serious the argument that the unfortunately camouflaged wording could be proof of a general plan to liquidate Communists. A court judgment for the protection of Communists will reveal the true circumstances. A sergeant had stolen hospital blankets which were intended for Soviet prisoners of war and had extracted a dead prisoner's gold teeth. This sergeant was sentenced to death by a

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naval court and executed after the sentence had been confirmed by the Commander-in-Chief.

Finally, the Prosecution also established a connection with the Jewish question through a remark in which Grossadmiral Doenitz speaks of the "creeping poison of Jewry." On this point I should like to add some comments. Doenitz knew as little of the plan for the destruction of the Jews as he did of its execution. He did know of the resettlement in the Government General of Jews living in Germany. I do not think that a resettlement of this sort can be condemned at a time when expulsions of Germans on a much larger scale are taking place before the eyes of a silent world. Here, too, I refer to a sentence of long penitentiary terms against two German sailors who, together with some Frenchmen, had robbed French Jews. From the findings of the court I again quote a sentence which characterizes the general attitude: "That the crimes were committed against Jews does not excuse the defendants in Any way."

Similarly, it seems to me that the efforts of the Prosecution to include Admiral Doenitz in its construction of the conspiracy by terming him a fanatical Nazi have failed. He was neither a member of the Party nor was he ever politically prominent before his appointment as Commander-in-Chief of the Navy. The assertion of the Prosecution that he became Commander-in-Chief of the Navy because of his political attitude lacks all foundation. As a professional officer, to whom every political activity was forbidden by the Reich Defense Law, he had no reason for dealing with National Socialism in any way. However, he, too, like millions of other Germans, recognized the unique success of Hitler's leadership in social and economic fields and, of course, also the liberation from the obligations of Versailles which Hitler had brought about and which particularly concerned Admiral Doenitz as a soldier. Therefore, at the time of his appointment as Commander-in-Chief of the Navy, he was politically in no way active, although loyal to the National Socialist State.

This appointment introduced two new elements into his relations with National Socialism. There was first of all his personal contact with Adolf Hitler. Like almost everyone else who had personal dealings with this man, he too was most deeply impressed by him. The respect for the head of the State and loyalty to the Supreme Commander inherent in the professional officer were complemented by admiration for the statesman and strategist. It is difficult fully to appreciate such an attitude in view of the information which has come to light in the course of this Trial. I feel neither called upon nor able to judge a personality like Adolf Hitler. But one thing seems to me certain, namely, that with a consummate art of camouflage he skillfully concealed the repulsive traits of his character from

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those of his collaborators to whom he did not dare reveal this part of his nature. The Hitler with whom the new Commander-in-Chief of the Navy became acquainted at that time, and whom he admired, was therefore an entirely different man from the one which the world-rightly or wrongly-pictures today.

The second new element in the relations between Grossadmiral Doenitz and National Socialism was that in the performance of his military duties he necessarily came into contact with the political authorities of the Reich. Whether he needed more men, more ships, or more arms, in the end he always had to discuss these matters with the political authorities, and in order to be successful in his demands, he had to make sure-that any political mistrust was eliminated from the very start. This he deliberately did, and he demanded the same of his subordinates. To him the Party was not an ideological factor, but rather the actual exponent of political power. He was linked with it in the common aim to win the war, and for the achievement of this aim he considered it his ally. But to obtain the advantages which one expects of an ally, one must be willing to make certain sacrifices, especially sacrifices in overlooking faults and in ignoring conflicting issues.

However, his connection with the Fuehrer and his contact with the Party, which were concomitants of his position and of his duties as Commander-in-Chief of the Navy, never led him to participate in anything for which he could not assume responsibility before his conscience. Some points of the Prosecution even go to prove this. The Fuehrer demanded action against shipwrecked crews; Admiral Doenitz rejected it. The Fuehrer asked for withdrawal from the Geneva Convention; Admiral Doenitz rejected it. He stubbornly and successfully resisted the Party's influence upon the Armed Forces. Thanks to his resistance the National Socialist Fuhrungsoffiziere did not become political commissars, but were, as genuine officers, merely advisers to their commander, who retained the sole responsibility for the leadership of his unit. The transfer of proceedings against soldiers on political grounds from the military courts to the People's Courts, which had been advocated by the Party, was prevented by Grossadmiral Doenitz until the winter of 1944-45, and a Fuehrer order to this effect issued at that time was never carried out in the Navy. Thus he never identified himself with the Party and can therefore surely not be held responsible for its ideological endeavors or its excesses, just as in foreign politics a government would not be ready to assume responsibility for such things if they had been done by an ally.

I do not by any means want to give the impression that Admiral Doenitz was not a National Socialist. On the contrary, I just want to use him as an example to disprove the theory that every National

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Socialist as such must be a criminal. This Tribunal is the sole instance in which authoritative personalities of the great Allied Powers are dealing directly and in detail with the last 12 years of the German past. It is, therefore, the only hope of very many Germans for the removal of a fatal error which is causing the weaker elements of our nation to become hypocrites and is thus proving a decisive obstacle on the road to political recovery.

And now I should like to deal with the charge that in February 1945 Admiral Doenitz protracted the inevitable surrender out of political fanaticism, and I wish to do so for a particular reason. This charge, which seems hardly to have anything to do with the Indictment before an International Tribunal, weighs particularly heavily in the eyes of the German people, for this nation truly knows what destruction and losses it endured in those last months from February until May 1945. I have submitted declarations of Darlan, Chamberlain, and Churchill from the year 1940 in which those statesmen, in a critical hour for their countries, called for desperate resistance, for the defense of every village and of every house. Nobody will conclude from this that these men were fanatical National Socialists. The question ~ of unconditional surrender is indeed of such colossal import to a nation, that in fact it is not possible until after the event to judge whether a statesman who had to face this question did or did not do the right thing. Admiral Doenitz, however, was not a statesman in February 1945, but the Commander-in-Chief of the Navy. Should he have asked his subordinates to lay down their arms at a time when the political authority of the State still considered military resistance as opportune and necessary? Nobody will seriously demand that.

Much more difficult seems to me the question of whether, in view of the high esteem Hitler had for him, he should not have considered it his duty to point out clearly to Hitler the hopelessness of prolonged resistance.

Personally, I would have affirmed this to be his duty toward his nation, if Admiral Doenitz himself at that time had considered that surrender was justified. He did not consider it justified, and he gave his reasons: Surrender implied a halt of the armies and of the population; the German Army on the Eastern Front-still numbering more than 2 million men in February 1945-and the entire civilian population of the German eastern provinces would thereby have fallen into the hands of the Soviet armies, and in a bitterly cold winter month, too. Admiral Doenitz, therefore, was of the opinion, shared by Generaloberst Jodl, that the losses in men suffered in that way would be far greater than the losses which would necessarily be caused if the capitulation were postponed until the warmer season. Only in future years, when more exact

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data regarding casualties of the Army and of the civilian population both before and after the surrender in the East and in the West are available, will it be possible to view this opinion objectively. But it may already be said today that such considerations arose entirely from a full sense of responsibility for the life of German men and women.

The same sense of responsibility caused him, when he became head of the State on 1 May 19457 to cease hostilities against the West, but to protract the surrender in the East for a few days, days in which hundreds of thousands were able to escape to the West. From the moment when-to his own complete surprise-he was given a political task, he calmly and intelligently averted a threatening chaos, prevented desperate mass action without a leader, and assumed responsibility before the German people for the gravest action which any statesman can take at all.

Thus, to revert to the beginning of the Indictment, he did nothing to start this war, but he took the decisive steps to end it.

Since that moment the German nation has learned of many things which it did not expect, and more than once it has been referred to the unconditional surrender which the last head of the State carried through. It is for this Tribunal to decide whether in the future this nation will be reminded of the binding value of the signature of a man who is being outlawed as a criminal before the whole world by his partners in the agreement.

At the beginning of my speech I mentioned the doubts which any trial of war criminals is bound to call forth in the mind and heart of any lawyer. They must weigh upon all who bear any responsibility in such a trial. I could not more fittingly describe the task of all the responsible persons than in the words of a British attorney speaking of the trials before the German Supreme Court in the year 1921. I quote:

"The war criminals' trials were demanded by an angry public rather than by statesmen or the fighting services. Had public opinion in 1919 had its way, the trials might have presented a grim spectacle, of which future generations would have been ashamed. But thanks to the statesmen and the lawyers, a public yearning for revenge was converted into a real demonstration of the majesty of right and the power of law." *

May the verdict of this Tribunal stand in a similar way before the judgment of history.

THE PRESIDENT: I call on Dr. Siemers for the Defendant Raeder.

DR. WALTER SIEMERS (Counsel for Defendant Raeder): Gentlemen of the Tribunal, in my final speech for the Defendant

* Claud Mullins, T he Leipzig Trials, London, 1921.

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Grossadmiral Dr. Raeder, I should like to keep to the order I chose for my document books and for the whole presentation of my evidence. I think a survey of the whole case will thus be made easier.

Raeder, who has just turned 70 years of age, has been exclusively a soldier, body and soul, ever since the age of 18, that is to say, for nigh on half a century covering an eventful period. Although he was never concerned with anything but his duties as a soldier, the Prosecution has accused him, in this great Trial against National Socialism, not only as a soldier) namely, as Commander-in-Chief of the German Navy, but, a singular and decisive point, as a politician, as a political conspirator, and as a member of the Government, three things which in truth he never was.

I am, therefore, faced with the singular task of defending Raeder as a politician, although it was precisely, as I shall demonstrate, his life principle as an officer to keep aloof from politics, and to command an officers' corps and a Navy likewise committed to remain

entirely free from politics.

If the Prosecution levels such manifold and grave accusations against Raeder, this is primarily because it has conceived a notion entirely foreign to the German Armed Forces, namely the notion of an admiral being responsible for foreign policy and for the outbreak of a war.

I shall disprove this conception and show that it was unjustified and unfounded even in Hitler's National Socialist State. True, Hitler again and again placed politics in the forefront of the nation and endeavored to give the nation a one-track political education. Foreign countries knew this, and they may well therefore be all the more surprised by the fact that Hitler refrained from such political shaping in one single instance. Every administration, every organization, and every police institution was directed by Hitler on political principles, with the single exception of the Armed Forces. The Armed Forces, and the Navy in particular, remained for a long time and far into the war absolutely unpolitical And not only did Hitler give Raeder an assurance to this effect, but he had also given the same assurance to Hindenburg as Reich President. This explains the fact, which has also been made clear in this Trial, that up to 1944 no officer could be a member of the Party, and if he was, then his membership was suspended.

After these preliminary reflections it will be understood why Raeder, as his interrogation showed, was disconcerted and amazed at these accusations which amount to a political charge. A man who is nothing but a soldier cannot understand why he should suddenly and without any relation to his military duties be made responsible for things which at no time came within the compass of his activity.

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I shall naturally also discuss the military accusations, with the exception of submarine warfare, which, for the sake of uniformity, has already been dealt with by Dr. Kranzbuehler on behalf of Raeder, too.

It will be seen from other military accusations, as for instance in the cases of Norway and Greece, that again and again there arises this discrepancy between the political and the military aspects: Raeder acted as Commander-in-Chief on the basis of military considerations, whereas the Prosecution now calls him to account on the basis of political considerations, by evaluating the military actions as political ones.

The first instance of this discrepancy already lies in the accusations raised against Raeder with regard to the period before' 1933, that is, before National Socialism. In connection with these accusations it must not be overlooked that Hitler, The head of the alleged conspiracy for the waging of wars of aggression, did not rule Germany at that time, and yet already at that time there is supposed to have existed a common conspiracy between Hitler and a part of the defendants.

This is all the more surprising because Raeder, as a naval officer and after 1928 as Chief of the Naval High Command, at that time had nothing, absolutely nothing at all, to do with National Socialism, and did not even know Hitler and his co-workers in the Party. The accusations concerning the violations of the Versailles Treaty are included by the Prosecution in the conspiracy, although the violations did not take place under Hitler's leadership, but under the leadership or with the approval of the democratic governments in Germany at the time. This shows that the Prosecution does not only want to attack National Socialism through this Trial as has been emphasized again and again during the war and after the collapse, but that the Indictment extends its scope to large circles in Germany which had nothing to do with National Socialism, some of whom were even direct enemies of National Socialism.

(1) For this very reason it seemed to me extremely important to clear up the question of the violation of the Treaty of Versailles in the course of the presentation of evidence in the Raeder case. I have endeavored to do so with the approval of the Tribunal, and I am firmly convinced that I have succeeded. I need not discuss each of the violations, which have been treated in detail and which the Prosecution has produced in Document C-32. It should be sufficient if I refer to the extensive evidence as well as to the following facts:

Every single point was either a mere trifle or else a military measure-such as for example the antiaircraft batteries-based

exclusively on the notion of defense. Raeder has plainly admitted

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that treaty infractions did occur, but the trivial nature of the infractions showed that these measures could not possibly have been connected with an intention to wage wars of aggression.

Moreover, I need only point out that from the legal point of view a treaty violation cannot ipso jure be a crime. Certainly the violation of a treaty between nations is no more permissible than the violation of a contract between private firms in commercial law. Such a violation is, however, not a punishable action, much less a crime. Even on the basis of the argument of the Prosecution, such action would be punishable only if the violation had been undertaken with criminal intent, that is, if it had been aimed at a war of aggression in contradiction to the Kellogg Pact. However, not even the Prosecution will be able to maintain this, and it has already indirectly intimated as much by refraining from taking up these points during the cross-examination of witnesses.

(2) The position is somewhat different with regard to a charge which the Prosecution discussed in detail only during cross-examination, namely, the charge concerning the participation of the German Navy in U-boat constructions in Holland; in this connection the Prosecution has relied upon Document C-156, the book by Kapitan zur See Schussler entitled, Der Kampf der Marine gegen Versailles, as well as on statements contained in the notes of the naval historian, Admiral Assmann, found in Document D-854. '

These documents prove that the German Navy had a share in a U-boat designing of lice in Holland, the firm N. V. Ingenieurskantoor voor Scheepsbouw. This participation occurred during the period before the Navy was under Raeder's command. The Tribunal will recall that Raeder did not become Chief of the Naval Command until 1 October 1928, whereas participation in the designing office in Holland dates back to 1923 and the following years.

May I emphasize, however, that in not a single instance was a U-boat built for the German Navy, and that consequently no U-boats were obtained or put into commission by the German Navy. In this connection I refer to the Versailles Treaty, Exhibit Number Raeder-1; Article 188 et sequentes of the Treaty of Versailles contain the terms with regard to the Navy. According to Article 188, Germany was bound to deliver her U-boats to the Allied nations or to dismantle them. This obligation Germany fulfilled completely. Moreover, Article 191 stipulates the following; I quote: "The construction and purchase of all submarine vessels, even for commercial purposes, is forbidden in Germany."

It appears from this clear treaty clause that participation in the Dutch firm was not a violation of the Treaty of Versailles.

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According to Article 191, Germany was only forbidden to construct or purchase U-boats, moreover, strictly speaking, only in Germany.

As a matter of fact, no U-boat was built in Germany in violation of the Treaty' and no U-boat was built for Germany abroad either. Participation in a foreign designing office was not forbidden, nor was this the purpose of the Treaty of Versailles. The point was merely that Germany should not create a U-boat force for herself. The Navy, however, was permitted to participate in a designing office so as to keep abreast of modern submarine construction, to gather information for the future, and to lay the foundation for an eventual construction of submarines, when permitted, by training technical experts (See Exhibit Number Raeder-2, Lohmann Affidavit). The aforementioned documents, submitted by the Prosecution, prove that the submarines designed by the Dutch firm and built abroad were put into service abroad, namely by Turkey and Finland.

Even if one were to take the view that designing work also was prohibited, then what was said under Figure (1) also applies. The designing was limited to only a few submarines, so that this small number in itself proves that there cannot have been any intention of waging wars of aggression.

(3) In case the High Tribunal should be unable to follow this train of thought as a sole argument, I may point out in addition that the lack of an aggressive intention is also evident from the fact that the trivial violations of the treaty were in a certain way compensated. I refer to the second affidavit of Admiral Lohmann, Exhibit Number Raeder-8, which shows that according to the Treaty of Versailles Germany was allowed to build 8 armored ships, whereas in fact she only built 3; it shows also that instead of 8 cruisers only 6 were built up to 1935, and that instead of 32 destrayers or torpedo boats, only 12 destroyers and no torpedo boats were built. In fact, with regard to the really important weapons, and especially those which may be considered as offensive weapons, the Navy kept far below the maximum permitted by the Treaty of Versailles, and this indeed to such an extent that by comparison the trivial violations in naval matters hardly count.

(4) According to the Weimar Constitution of 11 August 1919, Articles 47 and 50 (Exhibit Number Raeder-3), the President of the Reich had supreme command of all the Armed Forces. In order to be valid, the decrees of the Reich President required the countersignature of the Reich Chancellor or the Reich ministers concerned, in this case, the Minister of Defense. I quote: "Responsibility is assumed through the countersignature." Thus, from the point of view of constitutional law it is absolutely clear that the responsibility rests with the Minister of Defense or the Reich Government

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and the President of the Reich. It is, of course, true that before 1928, that is, before Raeder became the responsible Chief of the Naval Command, the Navy took a number of measures without the knowledge of the Reich Cabinet. But the evidence which I presented, especially the statement of the former Reich Minister Severing, shows that, contrary to the statements of the Prosecution, no secret measures were taken after Raeder became Chief of the Naval High Command. Severing has confirmed that the Muller-StresemarrnSevering Cabinet, in a Cabinet meeting of 18 October 1928, obtained a clear picture of the secret measures of the Armed Forces by interrogating Raeder as Chief of the Naval High Command and Heye as Chief of the Army Command.

Both Raeder and Heye, after they had given an explanation, were obliged and directed by the Cabinet, in conformity with the afore-mentioned paragraphs of the Reich Constitution, to take no future measures without the knowledge of the Minister of Defense or the Cabinet. At the same time the Cabinet established that the secret measures taken before Raeder's time were only trifling matters, and expressly assumed responsibility for them. If the Cabinet, in conformity with the Constitution, assumed the responsibility, this amounted to a legally and constitutionally effective procedure which exonerated Raeder as Chief of the Naval High Command and relieved him of responsibility. It appears, therefore, to be inadmissible that the defendant, who no longer bears the responsibility, should be made responsible for actions for which the Cabinet assumed responsibility.

The attitude of the Cabinet in the Cabinet meeting of 18 October 1928 further shows that none of these actions can have had as their basis any criminal intent to wage a war of aggression, for even the Prosecution will not desire to assert that men like Stresemann, Muller, and Severing intended to wage wars of aggression, but instead will have to believe Severing when he says that Stresemann, Muller, and he himself assumed responsibility for these violations only because they were based purely on conceptions of defense. One will also have to believe Severing's words that such conceptions of defense were justified, since in the twenties the danger that Germany might be attacked, for instance by Poland, was quite real, and she would then not have been in a position to defend herself with the small Armed Forces allowed her by the Versailles Treaty. This danger was particularly evident in connection with Polish border incidents in East Prussia and Silesia and during the occupation of Vilna, and it even increased when all attempts of Stresemann and Muller failed to achieve adherence to the promise to disarm which the other powers had given in the Versailles Treaty.

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How difficult Germany's position was and how justified measures of defense were, Justice Jackson himself admitted in his opening speech, when he said, I quote:

"It is quite possible that Germany in the twenties and thirties was confronted with desperately difficult tasks, tasks which would have justified the boldest measures, but not war."

I shall not even go as far as Mr. Justice Jackson, but I believe that these measures taken by the Navy are certainly covered by his own concept of "boldest measures."

The British prosecutor, Mr. Elwyn Jones, attempted during the cross-examination of Severing to prove that Raeder did not observe the obligations imposed on him in the Cabinet meeting of 18 October 1928, because Severing, according to his testimony, was not informed of the construction abroad of the small submarines for Turkey and Finland. In this connection, two things must be considered:

a. During his testimony Severing did not remember the details, but only the fundamental and decisive questions; with regard to the details, he naturally relied on the competent minister, in this case, the Reich Defense Minister.

b. According to Severing's testimony it was an exception that the Chief of the Naval High Command appeared before the entire Cabinet on 18 October 1928. Raeder as Chief of the Naval High Command was not obliged to inform al, the members of the Cabinet, but was, in accordance with the Constitution, merely obliged to inform the Reich Defense Minister, and that Raeder did. What the Reich Defense Minister then for his part submitted to the other members of the Cabinet and to the Reichstag was not only beyond Raeder's knowledge, it was also outside Raeder's responsibility, and solely within that of the Reich Defense Minister and the Cabinet.

In conclusion may I point out the following: If, despite all this, the Prosecution wishes to look upon these violations of the Treaty of Versailles on the part of the Navy as evidence of an intention to wage a war of aggression, then the Social Democrat or Democrat governments of that time bear the responsibility. Thereby the Indictment on this point collapses, for to take the governments of that time to task for the intention of waging wars of aggression would lead the Prosecution on this point to an ad absurdum.

(5) The treaty violations during the period from 1933 until the Anglo-German Naval Agreement of 1935 show the same factual and juridical picture. During these 2 years no important expansion of naval armament took place either. The only disputable accusation made by the Prosecution in this respect is contained in Document D-855, which was submitted during cross-examination. This is the

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report of Flottenintendant Thiele. According to this it was decided in March 1935, that is, a few months before the naval agreement, to prepare plans for the Scharnhorst and the Gneisenau with a displacement of 27,000 tons, although the maximum of 10,000 tons fixed by the Treaty of Versailles was still formally in force at that time for another 3 months, in contrast to a maximum displacement of 35,000 tons provided for in the Naval Agreement of 1935.

Here it should be taken into consideration that in March 1935 Germany could already count on the speedy conclusion of an AngloGerman agreement, whereas the period between the planning and the completion of a battleship is a much longer one, which cannot be counted in months, but only in years. As a matter of fact, the Scharnhorst and Gneisenau were only commissioned in 1938 and 1939, 3 and 4 years respectively after the naval pact (see Exhibit Number Raeder-2, Lohmann Affidavit).

The other matters submitted by the Prosecution are again trifles; for instance, the selection (not the construction, as the Prosecution says) of four or five merchantmen (see C-166), or the construction of 5 E-boats of 40 tons each (see C-151), which for technical reasons were built in place of 12 torpedo boats of 200 tons each. The Prosecution cannot in all seriousness turn these facts into grave accusations, especially as the afore-mentioned deviations from the Versailles Treaty were known to foreign technical specialists or-as the witness Schulte-Monting correctly put it-were an "open secret."

(6) And now I come to the decisive juridical aspect of all developments up to the summer of lg35. In the field of international law the same principle applies as in the field of internal commercial law: Breaches of agreement are considered adjusted and settled with the signing of a new agreement. In the present case the AngloGerman Naval Treaty of 18 June 1935-Exhibit Number Raeder-11- represents the new agreement. This naval agreement deviates completely from the Versailles Treaty both with regard to high-tonnage vessels and with regard to U-boats. It is only on the basis of what is permitted Germany by this new agreement that the insignificance of earlier violations of the Versailles Treaty, not at the time covered by existing agreements, becomes apparent.

10,000-ton cruisers were replaced by 35,000-ton battleships, and the ban on the construction of U-boats was replaced by the acknowledgement of equal rights with regard to U-boat tonnage. Germany's demands were not unreasonable; on the contrary, in the document mentioned, His Majesty's Government in the United Kingdom explicitly confirmed the German proposal to be ". . . an exceedingly important contribution to future limitation of naval armaments."

This agreement between Britain and Germany concluded the debate on the Versailles Treaty both factually and juridically, as far

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as the Navy is concerned. This naval agreement was generally welcomed in Britain and Germany at that time, and it was supplemented by a new agreement on 17 June 1937 (see Exhibit Number Raeder-14). As proof of the fact that the Navy violated the naval agreement, too, with aggressive intentions, the Prosecution has raised two charges:

11) In the Agreement of 1937 both contracting governments were bound to a mutual exchange of information, which was to take place annually, within the first 4 months of every calendar year, and was to contain details of the building program. According to Document C-23, the Navy violated this obligation insofar as it gave lower figures for the displacement and the draught of the battleships Bismarck and Tirpitz which were being built at the beginning of 1938, namely, as 35,000 tons instead of 41,700 tons. That this violation of the treaty did occur is openly admitted by Raeder, but again it is not such a serious violation as the Prosecution contends, that is, it is not a violation which shows proof of criminal intent. That is clear from the detailed evidence I have presented and from the testimonies of witnesses which I need not repeat here; it will be sufficient if I refer to the absolutely convincing expert testimony of the ship-building director, Dr. Suchting, which I have submitted as Exhibit Number Raeder-15. According to this, the increase in tonnage demanded by the Navy during the construction served a purely defensive idea, namely, that of increasing the armor plating of the battleships and of arranging the bulkheads in such a way that the battleships would be virtually unsinkable. This defensive idea, Dr. Suchting emphasizes, actually proved to be correct during the attack on and sinking of the battleship Bismarck. If it was only a question of a defensive idea, no aggressive intentions can be construed from this treaty violation.

With regard to the juridical aspect, it must be added that in the Naval Agreement of 1937, Articles 24, 25, and 26 conceded to the contracting governments the right to deviate, under certain circumstances, from the contracted agreements and especially from the tonnage limitation of battleships, if any other sea powers should build or acquire larger battleships. This case, stated in Article 25, had actually arisen, and so the violation of the agreement consisted in the fact that the Navy, although now entitled to build larger battleships, neglected to inform Britain of her desire to make use of that right. It was, therefore, only a violation of the obligation to exchange information. How meaningless this measure was is proved by the alteration of the Anglo-German Naval Agreement by virtue of the London Protocol of 30 June 1938, which I have submitted as Exhibit Number Raeder-16.

Already on 31 March 1938, that is, only 6 weeks after the date of Document C-23, Britain on her part had stated, according to the

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London Protocol of 30 June 1938, that she must make use of the afore-mentioned right granted by Article 25, and therefore proposed that the battleship tonnage be increased from 35,000 to 45,000. This agreement was then signed by both countries on 30 June 1938, and thus the violation of the treaty evident from Document C-23, became illusory.

(2) The British prosecutor raised a second charge by submitting Document D-854 during cross-examination. It consists of notes made by Admiral Assmann for his historical writings; on Sheet 15 of these notes he writes that Germany abided by the terms of the Anglo-German Naval Agreement least of all in the sphere of U-boat building and that 55 U-boats were allowed by the treaty up to 1938, but 118 were actually completed or begun. These statements by Assmann are actually incorrect, and in reality Germany strictly followed all the stipulations of the Anglo-German Naval Agreement with regard to U-boat building. Despite the assurance of equality of rights Germany by the Naval Agreement of 1935 voluntarily limited herself to 45 percent; but the right to increase this percentage at any time by friendly agreement with Britain was reserved for her. The presentation of evidence has shown (see the testimony of Raeder and Schulte-Monting) that in December 1938 corresponding negotiations took place between the British Admiral Lord Cunningham and Grossadmiral Raeder, during which His Majesty's Government approved the increase to 100 percent. It was not clear at the time when this evidence was presented, whether this approval had also been given in writing, as was to be assumed. Meanwhile I have been able to establish that such a document must have existed; I was able to gather this from the afore-mentioned Assmann Document D-854 in which on Page 169, in connection with Page 161, the letter in question dated 18 January 1939 is mentioned. In conclusion it remains to be said that the figure of 55 U-boats mentioned by Assmann corresponds to 45 percent, whereas the figure of 118 U-boats corresponds to 100 percent; accordingly Assmann, and therefore the Prosecution as well, are wrong. Actually there was no violation at all of the naval agreement with regard to U-boats.

[A recess was taken.]

DR. SIEMERS: I now come to the allegation of the Prosecution that Grossadmiral Raeder took part in a conspiracy to wage wars of aggression, and in particular supported Hitler and National Socialism despite his alleged knowledge that Hitler from the beginning had the intention of waging wars of aggression.

(1) How did Raeder establish contact with Hitler, and was he able, or even bound, at that time to realize an intention on the part of Hitler to wage wars of aggression?

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As I have said, it is a fact that Raeder before 1933 had nothing to do with National Socialism and knew neither Hitler nor his Party collaborators; he met Hitler on 2 February 1933, when he and the other commanders were introduced to Hitler by Baron von Hammerstein. As Chief of the Naval High Command Raeder had only one superior, Reich President Von Hindenburg, who, according to the Constitution and the Defense Law,* was the Supreme Commander of the whole Armed Forces. Hindenburg, as Reich President, had appointed Hitler Reich Chancellor, and thus a connection was of necessity created between Hitler and the Armed Forces. There was thus no question of any decision on the part of Raeder. As Hindenburg's subordinate, he had as a soldier to submit to the political decision which Hindenburg had taken as President of the Reich. The constitutional basis with regard to the Armed Forces was in no way altered by the fact that Hitler came to power. As Chief of the Naval High Command Raeder took as little part in this political decision as he had done on previous occasions when Muller, who was a Social Democrat, or Bruning, who belonged to the Center Party, became Reich Chancellors.

Nor was there any cause for Raeder to resign his post on account of this internal political decision, for Hitler had explained to him end the other high officers at the first conference on 2 February 1933, and particularly also on the occasion of the first naval report in the same month, that nothing in the Armed Forces would be changed and that the Armed Forces must remain aloof from politics, as laid down in the Constitution and the Defense Law.

The testimony of Raeder and Schulte-Monting proves that during the naval report Hitler explained his fundamental ideas in regard to a peaceful policy, in which connection, in spite of the amicable revision of the Versailles Treaty to which he aspired, it was essential to come to an understanding with England by means of a treaty providing for the development of the Navy within the general limitations of naval armament. During this conversation Hitler clearly indicated that he. did not want a naval armament race and that the development of the Navy should take place only in friendly agreement with England. This principle was absolutely in line with the viewpoint of Raeder and the Navy, and it was therefore quite out of the question for Raeder to tell his superior, Hindenburg, that on account of Hitler he could no longer head the Navy.

Now the Prosecution maintains that the leading personalities in Germany at that time already knew Hitler's true intentions from his book Mein Kampf, and has cited as proof several quotations, partly -torn from their context, from Hitler's propaganda book of 1924. This argument of the Prosecution does not seem to hold good, because

Hitler wrote this book as a private individual belonging to an opposition party. In this Trial it has several times been pointed out that the statements of foreign private individuals are irrelevant even when these foreigners are well known, and subsequently-as in Hitler's case-received a position in the government. Racder could assume, as could anyone else, that as Reich Chancellor Hitler would not Uphold all the Party doctrines which years before he had defended as a member of the opposition, particularly since the statements of Hitler on military matters contradicted these former Party ideas. Moreover, the Navy relations with England were always of foremost importance and in this connection Hitler himself had said in his book Mein Kampf, Page 154: "But for such a policy there was only one possible partner in Europe: England." (Document Book 2, Document Number Raeder-20, Page 119.)

In rebuttal of the quotations submitted by the Prosecution it must also be said that they are all taken from the 1933 edition and that, in spite of great pains, the General Secretary's office has been unable to procure an earlier edition, particularly the first edition of 1925 and 1927. It is a known fact that in later years Hitler himself made changes on many points in numerous places in his book, consequently the quotations from the 1933 edition cannot be taken as a basis on their face value.

Ought Raeder in the following years to have realized that Hitler desired to abandon the fundamental idea of an understanding with England, and is it possible to agree with the argument of the Prosecution that Raeder should have refused further collaboration at some time before 1939? I believe that this question must be answered in the negative for reasons which appear quite naturally from various facts which the Prosecution or the Defense submitted in evidence:

Hindenburg died on 2 August 1934, and the Prosecution reproaches Raeder because he thereupon took an oath in which he

named the Fuehrer in the place of the fatherland. (Record of 15 January 1946, Volume V, Page 262.) This point was sufficiently clarified in the presentation of evidence. Therefore I need only refer to the error which the Prosecution made in its assertion; the Prosecution itself produced Document D-481 which shows the oath of allegiance taken by the soldiers of the Armed Forces on Hitler's orders. The document is a law signed by Hitler, Frick, and Blomberg and it shows that it was not Raeder who replaced the word "Vaterland" by "Hitler," but that Hitler himself demanded that all soldiers should take the oath to him as Commander-in-Chief of the Armed Forces. Before Hitler demanded this oath, which he had cleverly devised and which proved so fateful in the future, Racder had neither been informed nor had his advice been asked on the

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wording. He was simply summoned to the Reich Chancellery without knowing the reason. The question as to what kind of oath is to be taken by a soldier is again a political one, a question of legislation, upon which Raeder as a soldier and Commander-in-Chief of the Navy had no influence.

The Prosecution charges Raeder with having been informed of many political decisions and with having, as Commander-in-Chief of the Navy, made strategic plans and preparations on the occasions of such political measures. The Prosecution referred to the withdrawal from the League of Nations on 14 October 1933, the occupation of the Rhineland on 7 March 1936, the Austrian Anschluss in March 1938, the incorporation of the Sudetenland in the autumn of 1938, and the establishment of the Protectorate of Bohemia and Moravia in March 1939.*

The documents in question are in the main those marked in the footnote, and I can refer to them jointly in this connection. There is one fact common to all of these decisions, namely, that Raeder did not politically take part in any of them. Raeder was never consulted beforehand and as Commander-in-Chief of the Navy he had no authority to participate in such decisions. Raeder did nothing more than take note of these documents and reports, and then issue the orders necessary for precautionary military measures in case the country became involved in war. It seems quite incomprehensible that the commander-in-chief of a branch of the Armed Forces should be reproached for having made strategic preparations in the event of political complications. I imagine that it is customary all over the world that an admiral never takes part in political decisions, while at the same time he is obliged to make certain precautionary preparations depending upon such political decisions of the government. -This is another example of the discrepancy I have already mentioned affecting the position of a military commander, which, although the Prosecution considers it to be a political one, is in reality purely military. There is hardly any doubt that the military commands of foreign countries involved in these political decisions or interested in them were also at the same time taking precautionary military measures.

A military commander could not judge whether these political decisions of Hitler were crimes or even violations of international law, all the less since he was never summoned to the consultations. Neither the withdrawal from the League of Nations, as a result of the failure of all endeavors to induce the other countries to disarm in the spirit of the Versailles Treaty, nor the occupation of the

* Especially the following documents are concerned:

C-140, USA-51 of 25 October 1933; C-159, USA-54 of 2 March 1936, C-194, USA-55 of 6 March 1936; C-175, USA-69 of 24 June 1937; 388-PS, USA-26 of 20 May 1938; C-136, USA-104 of 21 October 1938.

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Sudetenland or the establishment of the Protectorate of Bohemia and Moravia, can be regarded as criminal activities, in the sense of the Indictment, of a disinterested commander-in-chief. They were certainly deviations from the Versailles Treaty, but even the British Prosecutor, Sir Hartley Shawcross, declared on 4 December 1945 in this courtroom that "many objections against Versailles were possibly justified." * And even Justice Jackson, as quoted above, said that the boldest measures would have been justified for the purpose of revising this treaty, but not a war.

All these measures taken by Germany were in fact carried out without a war, and therefore come under the heading of measures which Justice Jackson considers justified, all the more so since they were all silently condoned by foreign countries, or even agreed upon by treaty, as for instance in the case of the incorporation of the Sudetenland by the Munich Agreement of September 1938, or, as in the case of Austria, by agreement with that country.

In the cases of Austria and of the establishment of the Protectorate of Bohemia and Moravia, the Prosecution quite justifiably, looking at these cases objectively and retrospectively, points out that Hitler employed extremely dubious and possibly criminal means to achieve his aims; however, this can have no significance as far as the Commander-in-Chief of the Navy is concerned, since it has been firmly established that he was not informed of these activities, much less of the means employed therein. It has been established in particular that Raeder was neither informed of the details of the Austrian Anschluss nor of the kind of conference which ultimately led to an agreement with President Hacha. He was not told of the discussions with Hacha, nor of the threat of a bombardment of Prague, which was made in the course of these discussions; I refer in this connection to the testimony. of the witnesses Raeder and Schulte-Monting. In the eyes of Raeder, therefore, these constituted measures permissible under international law, or else agreements which gave him no cause to interfere or to question Hitler, quite apart from the fact that as a military commander he had no right whatsoever to do so.

Moreover, had military complications arisen, land operations only would have been involved, as is quite obvious from the location of the countries concerned. It would have amounted to an impossible situation if the disinterested Commander-in-Chief of the Navy had seen fit to concern himself with these things although hardly any naval preparations were required. In the case of Czechoslovakia, for example, Document 388-PS lays down, as far as the Navy was concerned, only that it was to participate in possible Army operations by commitment of the Danube flotilla which for this purpose was

* Record of 4 December 1945, Volume III, Page 95.

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placed under the orders of the High Command of the Army; this flotilla consisted of very small ships, a few gunboats, if I remember correctly.

In this connection I also quote Sir Hartley Shawcross when on 4 December 1945 he spoke of the German-Polish Non-Aggression Pact of 1934: "By entering into it"-Hitler-"persuaded many people that his intentions were genuinely pacific . . ." *

Accordingly, Raeder too had reason to be convinced. It is true that Raeder belonged to the Secret Cabinet Council created in February 1938. But it is also true, and has been proved in the meantime, that the Secret Cabinet Council was just a farce. It is therefore unnecessary to deal with this point which the Prosecution originally considered so important.

The claim of the Prosecution that Raeder was a member of the Government and a Reich minister has been refuted in the same way. This assertion of the Prosecution has from the outset been somewhat incomprehensible. Document 2098-PS, presented by the Prosecution, only states with absolute clarity that Von Brauchitsch, the Commander-in-Chief of the Army, and Raeder, the Commander-in-Chief of the Navy, held-I quote-"a rank equivalent to that of a Reich minister." This proves that he was not a minister, although for reasons of etiquette he held a rank equal to that of a Reich minister, and it follows that this decree of Hitler did not assign a political task to Raeder, as the Prosecution would like to have it.

Moreover, this decree does not even give him the right to participate in Cabinet sessions at his own will, but only, as Hitler says in the above-mentioned document, "upon my order." This simply means that Racder might have been called upon by Hitler to participate in a Cabinet session when technical naval problems were being discussed. In reality this hypothetical and politically insignificant case never arose.

Nor can membership in the Reich Defense Council-Document 2194-PS**-be considered incriminating. In the first place the council

was concerned, as the text says, only with "preparatory measures for the defense of the Reich," that is, neither with political activities nor with activities connected in any political sense with aggressive war. Furthermore, according to Document 2018-PS, a later Fuehrer decree of 13 August 1939, and contrary to the claim of the Prosecution, Raeder never belonged to the Ministerial Council for the Defense of the Reich set up at that time, for the simple reason that he was not a minister. Actually other countries, too, possess institutions like a defense council or defense committee. I call

* Record of 4 December 1945, Volume III, Page 110. 'I Reich Defense Law of 4 September 1938.

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attention to the fact that already long before the first World War the British Government had a defense committee which was of much greater importance * than the equivalent institution in Germany.

As the final matter in this connection, I wish to point out that the claim of the Prosecution that Racder was a Party member has also proved untenable. It is true that Raeder received the gold insignia of honor from Hitler; but this was only a decoration; it could not mean anything else, because a soldier could not be a member of the Party. That is clear beyond all doubt from Paragraph 36 of the Reich Defense Law, which forbids soldiers to engage in politics and to be members of a political organization. **

I also refer to the evidence, which proved amply that Racder never had connections with the Party, that indeed he more than once had arguments with Party circles and that he was unpopular with typical National Socialists because of his political and particularly his religious attitude. Goebbels, for instance, positively detested him, and this was not surprising, because on the one hand he always prevented the Party from gaining any sort of influence on the officers' corps of the Navy, while on the other, in contrast to the Party, he supported the Church to the greatest extent, and saw to it that the morale of the Navy was founded on a Christian basis. I refer in this connection to the typical National Socialist phrase of Bormann:

"National Socialist and Christian concepts are incompatible."*** In the same document Bormann, as he so often did, expressed views devoid of all civilized standards and attacked Christianity so strongly, and so violently advocated the elimination of all Christian ideas, that this attitude by the Party is sufficient proof that Raeder, as a devout Christian, could never have entertained relations with the Party.****

I have already stated that in 1933 Hitler said that it would be one of the fundamentals of his policy to make Germany sound and strong by peaceful means, and that for such peaceful development it was absolutely necessary to acknowledge British hegemony and come to an agreement with Britain about the size of the German fleet-if possible, even to come to an alliance. These ideas coincided with Raeder's fundamental attitude, which he explained in detail during his examination here. As far as my defense is concerned, it may remain an open question whether and when

* For instance under Balfour and Churchill.

** Document Book 1, Document Number Racder-4, Page 12.

*** Document Book 6, Document Number Raeder-121, Page 524.

**** Refer also to Ronneberger Affidavit, Document Book 6, Document Number Raeder-126, Page 543 et sequentes which point to the same subjects, especially to the strong Christian belief of Raeder and to the pronounced opposition to Christianity and Church by Bormann.

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Hitler abandoned that basic thought. In any case, Hitler always emphasized this basic thought to Raeder and actually supported it with deeds; this ever-recurring thought can be traced through all the years up to the outbreak of war, and it was in the pursuit of this basic principle that the Anglo-German Naval Agreement was concluded in 1935 and the second Anglo-German Naval Agreement in 1937, that an agreement on submarines was reached with Lord Cunningham in 1938, and that the London protocol on the subject of battleships was signed on 30 June 1938. Thus, throughout the years of the reconstruction of the German Navy the same idea was always predominant, namely, of achieving agreement with Britain, of acknowledging Britain's supremacy and of avoiding any difference which might lead to a break with Britain.

Looking back now in cognizance of all the documents and all the facts proved during this Trial, Hitler may be assumed at some time, probably in 1938, to have become unfaithful to his own principles and thereby guilty of bringing about the tragic fate of Germany. However, in judging the accusations made against Raeder, the decisive issue is not what must subsequently, in the light of all known facts, be acknowledged as objectively true; the real issue is only whether Raeder realized, or was even able to realize, Hitler's deviation from his own ideas, and the answer to that is "no." Raeder could not have guessed, much less have known, that Hitler at some time became untrue to his own political ideas which he had repeatedly stressed and demonstrated, and thus guilty of kindling the frightful conflagration of World War II.

Raeder could not have suspected or known that during the period immediately preceding the war Hitler spoke to him, too, in words which were at variance with his thoughts and also different from his actions. As far as the Navy in particular was concerned, the relatively slow rebuilding of the German fleet showed that Hitler proposed to remain faithful to the ideas which I described. There was no indication at all of a change of mind on Hitler's part in this field, for a change of mind would surely have resulted in a naval rebuilding program bigger than the one which Hitler actually carried out. At the very least he would then have made full use of possibilities offered by the Anglo-German Naval Agreement. According to the Naval Agreement, the German fleet was allowed a total tonnage of 420,595 tons,* yet actually this maximum was never utilized. Even with regard to battleships, Germany remained short of the Naval Agreement, with the result that the battleships Bismarck and Tirpitz were not available in the first year of the war, and thus could not take part in the occupation of Norway;

the Bismarck was completed only in August 1940, and the Tirpitz in 1941.

According to the Naval Agreement, Germany was allowed the

same tonnage in submarines as England. In reality, however, U-boat construction was so slow that at the beginning of the war in 1939, as the evidence has proved, Germany had only the small number of 26 U-boats available for Atlantic service. And further, according to Document L-79, known as the "Lithe Schmundt," it was laid down as late as the end of May 1939 that-I quote-"no change will be made in the ship-building program."

All this must have firmly convinced the Commander-in-Chief Of the Navy from his personal point of view and his sphere of work that Hitler wanted to stand by his much-stressed basic principle of avoiding war.

Raeder's firm conviction in this respect-this seems to be an important consideration-was to a large extent confirmed by the attitude of foreign countries. Winston Churchill, in his book Great Contemporaries, wrote in 1935:

"It is not possible to form a just judgment of a public figure who has attained the enormous dimensions of Adolf Hitler, until his lifework as a whole is before us... We cannot tell whether Hitler will be the man who will once again let loose upon the world another war in which civilization will irretrievably succumb, or whether he will go down in history as the man who has restored honor and peace of mind to the great Germanic nation, and brought it back serene, helpful, and strong to the forefront of the European family circle."

One year later, at the Olympic Games in Berlin in 1936, the representatives of the foreign countries appeared in a body and greeted Hitler in a manner which, in its approval bordering on enthusiasm, appeared incomprehensible to many skeptically inclined Germans. Subsequently, the foremost politicians and members of various governments visited Hitler and reached complete understanding with him, and finally, in the autumn of 1938, agreement was again reached under Chamberlain and Lord Halifax; an agreement which strengthened Hitler immeasurably, and by which he sought to prove to the Germans how expedient all his actions had been, since they were thus approved by foreign countries. The joint declaration, which Chamberlain and Hitler issued in Munich on 30 September 1938, can never be overestimated in its importance. I would, therefore, like to quote the first two decisive sentences from it:

"We have had a further discussion today, and are agreed that the question of Anglo-German relations is of primary importance for both countries and for Europe.

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"We regard the agreement signed last night and the Anglo German Naval Treaty as symbolic of the desire of our two nations never again to wage war against each other."

I think that these references are sufficient. Now, can one demand of a German admiral, who has never been a politician, but always only a soldier, that in judging Hitler he should have looked farther ahead than the great British statesmen, Chamberlain and Churchill? Surely the very question indicates that the answer is "no."

The Prosecution can seriously confront these numerous aspects only with a few documents which might indicate Raeder's knowledge of Hitler's aggressive plans. The Prosecution has indeed presented innumerable documents of which Raeder or the Naval Operations Staff or the High Command of the Navy were stated to have received copies, but in a considerable number of instances the Prosecution could not say anything beyond the fact that Raeder received a copy of the documents; for the most part no real connection existed, nor was it alleged by the Prosecution. Naturally, it is not surprising that for the sake of uniformity military documents went to all branches of the Armed Forces, even if in certain cases one branch of the Armed Forces was not at all, or only vaguely, concerned with them. Of all these documents which have been submitted in the case of Raeder, only the four documents which, because of their importance, the Prosecution described as key documents, could be really incriminating. These are Hitler's four speeches to the Commanders-in-Chief of 5 November 1937, 23 May 1939, 22 August 1939, and 23 November 1939.*

The Prosecution claims that these speeches prove participation in the conspiracy, and that it is clearly evident from them that Hitler wanted to wage wars of aggression. I would therefore dike to deal with these documents individually and in detail, and in doing so, show why they cannot modify the general picture I have presented.

Undoubtedly these key documents are of the utmost importance for the subsequent historical findings on what trains of thought motivated Hitler; they are important because they are expressions OI Hitler's opinion and because, in spite of the tremendous amount of captured documentary material, there are hardly any written notes of Hitler. One is tempted, of course, to accept the conclusion that the contents of these documents must be true because they are statements made before a small circle, where Hitler would naturally express himself more openly than in his public speeches. Even though I by no means fail to recognize their value, I nevertheless

believe that the Prosecution overestimates the importance of these four documents by far. Certainly, they are to some extent key documents, since they provide the key to an understanding of Hitler's mind and methods, but they are not a key to the real intentions of Hitler, and more particularly they do not provide a scale for any conclusions which those who listened to the speeches must, in the opinion of the Prosecution, needs draw from them.

Therefore, in order fully to explain the value of the documents, I would like first of all to mention several general points which apply generally to each of these four documents and limit their evidential value, which the Prosecution has overestimated. None of these speeches was taken down in shorthand, so that the actual text of the speeches is not available. Accordingly' in the record of the address of 5 November 1937, Hossbach correctly chose the indirect form of speech, and Generaladmiral Bohm in his record of the speech of 22 August 1939 * did the same. Surprisingly and not quite correctly, Schmundt chose the direct form of speech in his record of 23 May 1939, although it was not a verbatim record; however, he was at least careful to state at the beginning that Hitler's words were being reproduced "in essence."

The feeblest documents, that is to say, the two versions of the speech of 22 August 1939 which the Prosecution has submitted, are written in the direct form of speech, and the authors of these documents, whose names are unknown, have not even deemed it necessary to add some sort of note as Schmundt did. However this may be, in considering the documents it must be kept in mind that they were not reproduced word by word and that therefore the reliability of the reproduction depends on the manner of work and attitude of the author of the document, especially on whether and to what extent he made notes during the speech, and when he prepared his record. In this connection it is important to note that, as Document 386-PS shows, Adjutant Hossbach wrote the record a full 5 days later, namely on 10 November, though the speech itself had already been made on 5 November. In the case of Schmundt, the date of the record is missing altogether, and in the two Prosecution documents on the speech of 22 August 1939 there is also no date. The last two documents also lack any signature, so that in this case it is not even possible to say who bears the responsibility for the record The same applies to the document on the speech of 23 November 1939. All these formal deficiencies allow considerable doubt concerning evidential value and reliability of the documents to be entertained.

It is different in the case of the Bohm document, who in his affidavit certifies that he wrote down Hitler's speech as it was being

* Document Book 2, Document Number Raeder-27, Page 144 et sequentes.

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made, that he noted down the exact text of particularly important passages, and that he edited the final draft, submitted here, on the same evening. Since in all these documents the true text is not available, it is obvious how important it is if one can at least establish that the record was made simultaneously with the speech, or at least on the same day and not, as in the case of Hossbach, 5 days later. Even with the best of memories the best adjutant, who has to handle many new matters every day, cannot possibly after 5 days give an absolutely reliable reproduction of a speech.

The second point is just as important, namely, that unlike other military documents these are not official documents with a distribution list, that is, they are not documents which were subsequently sent to those concerned. That the documents were not sent to Raeder was established in the evidence by him and by the witness Schulte-Monting, apart from the fact that it is already apparent from the lack of a distribution list on the document. This point, in particular, seems to me of great importance. Listening to a speech once-and it will be recalled that Hitler spoke extremely quickly- does not induce the listener to draw conclusions in a way which the reading of the record might, since the record allows for a check and recheck of the contents of the speech. We who have come to know these speeches in the proceedings in their written form and have again and again checked their wording, naturally invest certain words and phrases with more importance than we would have done if we had heard them as part of a quickly delivered address. In addition, all of us are readily inclined to lend more importance to the various phrases, because from our present standpoint and in view of our more extensive knowledge we can now survey every

,thing much more easily; for we have not only one speech on which to base our opinions, but all of them and in addition all the many other documents showing the historical development. In discussing these documents it must always be borne in mind that listeners are inclined to react to the spoken word quite differently, and that often, even after only a few hours, the reports of various listeners differ from one another.

The Prosecution considers these speeches of Hitler to be the basis of the conspiracy, and says that on these occasions Hitler consulted with the commanders, reached a certain decision, and concluded a certain plan of conspiracy with them. The Prosecution is bound to maintain this, because one can only speak of a conspiracy when something is being planned in common. In reality, the assertion of the Prosecution that an influential group of Nazis assembled to examine the situation and make decisions is incorrect; the occasion took the form of an address by Hitler alone, and no discussion and no consultation took place. Nor was any decision reached, either;

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Hitler just spoke quite generally about-1 quote-"possibilities of development." * If one can speak of decisions at all, it was a decision solely on the part of Hitler. All this contradicts the existence of a real conspiracy. Altogether I have the impression that, in its conception of a conspiracy to wage wars of aggression, the Prosecution has conceived an entirely false picture of the real distribution of power within the National Socialist State. In my opinion the Prosecution fails to recognize the characteristics of a dictatorship, and indeed it may be very difficult to understand the immeasurable dictatorial power of Hitler if one has not personally lived through all of those 12 years in Germany, in particular the growth of Hitler's power from its first beginnings until it finally developed into a dictatorship wielding the most cruel and horrible terror. A dictator like Hitler, who moreover quite obviously exercised immense powers of suggestion and fascination, is not a president of a parliamentary government. I have the impression that in judging the situation as a whole the Prosecution has never completely relinquished the idea of a parliamentary government nor taken the uncompromising ways of a dictator into accoumt.

The idea of a conspiracy between him and the members of the Cabinet or between him and the commanders was quite contrary to Hitler's own nature, as the testimony of several witnesses showed in the course of the Trial. This was proved with particular emphasis by the testimony of the Swedish industrialist, Dahlerus, who by reason of his excellent and extensive connections both with Britain and Germany was in the course of time able to obtain an objective picture of both countries, and who during his Negotiations with Chamberlain and Halifax on the one hand, and Hitler and Goering on the other, was best able to recognize the difference between the parliamentary British Government and the German dictatorship of Hitler. The account of Dahlerus proves convincingly that the difference was irreconcilable. After he had spoken with Chamberlain and Halifax, a discussion with the Cabinet naturally took place before a final decision was taken. On the other hand, when in the night of 26 to 27 August 1939** Dahlerus had a discussion of decisive importance with Hitler, at which only Goering was present, Hitler at once made six propositions, without saying a word to any of the Cabinet members or any of the military commanders, without even consulting Goering who sat by silently; proposals, moreover, which did not exactly tally with what he himself had told Sir Revile Henderson a short time before. A stronger argument against a conspiracy with commanders or members of the Cabinet can hardly exist, unless

* See Hossbach Document.

'* Record of 19 March 1946, Volume IX, Page 463.

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it be the equally important fact which the witness Dahlerus added, namely, that during the entire 21/2, hours Goering did not dare say a single word, and that it was humiliating to see the degree of servility which Hitler demanded even of Goering, his closest associate.*

All these Hitler speeches are full of contradictions. Such contradictions naturally impair clarity of thought, and they rob individual ideas of their importance. When reading the documents in their entirety, the number of contradictions becomes evident, as the witness Admiral Schulte-Monting correctly pointed out during his examination and cross-examination. It is just because of such contradictions and often illogical thinking that the evidential value of the documents is diminished. Naturally it is difficult for a military adjutant like Hossbach or Schmundt to record unclear and contradictory trains of thought; and it is also easy to understand that a military adjutant will be inclined to introduce as clear a line of thought as possible, and will in consequence be misled into applying to certain ideas which have become clear to him more stress than they were actually given in the speech itself. To this can be added a remark of Raeder, who not only points to the contradictions, but especially to Hitler's overactive imagination, and very appropriately calls him a "master of bluff." **

Moreover, in every speech of that type Hitler followed a very definite tendency. He had a definite purpose in view, namely, to bring about the desired impression on all or some of his hearers, either by intentional exaggeration or by making things appear deliberately harmless. While he spoke, Hitler followed the intuition of the moment; as Schulte-Monting termed it, he wandered from his notes. He thought aloud and wished to carry his hearers away, but he did not want to be taken at his word.*** Everyone will agree with me that such practices and such purposefully designed speeches give no clear indication at all of Hitler's true views at the time. In addition, there is this to be said about all these documents in general:

Following his address of 23 May 1939-known as the "Little Schmundt"-Raeder had an interview with Hitler alone in which he called Hitler's attention to contradictions in his address and also to the contradiction arising out of Hitler's assurance to Raeder personally that he, Hitler, would under all circumstances settle the case of Poland equally peacefully. Hitler thereupon put Raeder's mind completely at rest and told him that he had a firm hold on matters, politically. This was stated by the witness Schulte-Monting**** who added that Hitler allayed Raeder's misgivings about

* Record of 19 March 1946, Volume IX, Page 481.

** Record of 16 May 1946, Volume XIV, Page 35.

*** Record of 22 May 1946, Volume XIV, Page 314.

**** Record of 22 May 1946, Volume XIV, Page 306.

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the contradiction between the speech of 23 May 1939 and his other statements by telling him that for him, Hitler, there were three grades of keeping matters secret: Firstly, by private conversation with one partner; secondly, the thoughts he kept to himself; and thirdly, some ideas which he himself did not fully think out.

I believe this way of thinking as explained by Hitler himself illustrates most strikingly how little reliance could ultimately be placed on statements which he made before a small or a large group of people. It seems to me quite plausible, therefore, that Raeder based his deliberations neither on Hitler's general speeches nor on the address before the commanders which was discussed here, but went solely by what Hitler told him in private discussion. In this respect, the statements of Schulte-Monting, Bohm, and Albrecht* all prove that as late as 1939 Hitler was still, in private conversation, repeatedly giving Raeder the explicit assurance that there would be no war; and he did this whenever for some reason or other Raeder was particularly anxious and drew Hitler's attention to the dangers ahead.

In conclusion, therefore, I believe it may be said that the so-called key documents are extremely interesting in assessing Hitler from a psychological point of view, but that their evidential value as regards Hitler's real intentions is very limited and slight. One cannot reproach Raeder for not letting himself be guided by the tendentious and deliberate speeches which Hitler made before his commanders on the spur of the moment, and preferring to rely on assurances which Hitler himself gave him and on the fact that until the summer of 1939, until the very outbreak of the war, these assurances were in perfect accord with the facts and with Hitler's actions, that is, with the four naval agreements and the Munich Pact.

It is understandable that Raeder did not permit this basic attitude to be shaken by these speeches to the commanders-in-chief, though they were undoubtedly of a questionable nature, but that he held steadfastly to his belief that Hitler would not' deceive him. The fact that we now subsequently realize that Hitler did after all deceive Raeder in his private conversations with him, and also by his special second and third grade of secrecy, does not indicate any guilt on Raeder's part, but solely on Hitler's. The vast amount of material in this connection does not indicate that in 1930~ and 1939 Raeder planned a war of aggression in violation of international law, but reveals only that Hitler planned a war of aggression in violation of international law.

This completes my general treatment of the key documents and I now ask the Tribunal's permission to add a few points on each individual document, since the Prosecution again and again stressed these documents as the basis for the charge of conspiracy.

Hossbach Document, discussion of 5 November 1937 in the Reich Chancellery:

The crucial passages of this document are obvious, and the Prosecution has cited them often enough. But in dealing with this document it should be taken into consideration that both Goering and Raeder stated here that Hitler announced in advance his intention of following a certain trend or purpose in his speech. Hitler was dissatisfied with the measures taken by Field Marshal Von Blomberg, and especially by Generaloberst Von Fritsch, the Commander-in-Chief of the Army, and felt that progress in the rearmament of the Army was too slow. Hitler therefore intentionally exaggerated, and since this was known only to Goering and Raeder, it is natural that the impression which the speech made on Neurath, who had no idea of this intention, was entirely different and considerably alarming.

It is interesting to note that apparently Hitler did not fully get what he wanted, because the last two paragraphs of the document indicate that to some extent Blomberg and Fritsch saw through Hitler's scheme, and that his exaggerations did not deceive them. Though Hitler did not permit discussion on such occasions, Blomberg and Fritsch intervened in this instance and pointed to the need for preventing Britain and France from becoming Germany's adversaries. Blomberg explained the reasons for his protest, and in the penultimate paragraph of the document Fritsch showed unmistakably that he was skeptical of Hitler's words by remarking that under such circumstances he would not be able to take his planned vacation abroad scheduled to begin on 10 November. It is also significant that Hitler thereupon came round and, in contrast to his earlier statements, said that he was convinced of Britain's nonparticipation, and that consequently he did not believe in military action against Germany on the part of France either.

That Hitler's ideas in this document are quite impossible is also evident from the fact that he based his statements on a truly fantastic notion, namely, an Italian-French-British war or, equally fantastic, a civil war in France. In contradictory terms Hitler spoke in his speech on the one hand of an application of force, on the other of an attack by Poland against East Prussia, which could only refer to a defensive aspect-and in regard to Czechoslovakia he said that in all probability Britain and France had already privately written that country off. This reference is an indication that Hitler was prepared to negotiate, which was borne out by

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actual developments. He said that Austria and Czechoslovakia would be brought to their knees, but nevertheless in the following year, in March and September 1938, he carried on negotiations and settled both questions without war. This fact in particular seems significant, because it proved to Raeder in the course of later events that he was in not ascribing undue importance to Hitler's strong words of 5 November 1937, for in spite of these words Hitler in reality did carry on negotiations at a later date.

During his interrogation Raeder also rightly pointed out that the second extensive naval pact had been concluded with England only a few months earlier and that as a result he could not seriously expect Hitler to abandon a line of policy which he himself had initiated.

And finally, there is this point: The whole document deals with political questions on the one hand, and with possible land operations on the other. Raeder had nothing to do with political questions because he is no politician, while Neurath as Foreign Minister naturally had reason to give Hitler's political attitude more consideration. It is also significant that Neurath testified here that as a result of this speech he too asked Hitler about his personal attitude, and that he refused to remain Foreign Minister because Hitler told him that those were his true intentions. To me it seems typical of Hitler to tell one person, Neurath, that perhaps he would go to war, and to tell another, Racder, that he would under no circumstances wage war. This divergence in explaining his position was obviously caused by the fact that at that time he no longer relished Neurath as Foreign Minister, because he realized that with regard to the foreign policy which he proposed to follow, Neurath would not be as submissive as the successor whom he had in view, Ribbentrop. On the other hand at that time he still wanted at all events to retain Raeder as Commander-in-Chief of the Navy. This is another instance of how Hitler's actions were determined by a certain ultimate purpose, and how he always and without the slightest inhibition followed the principle that the end justifies the means.

Hitler's speech of 23 May 1939, the so-called "Little Schmundt," USA-27: Here again Hitler expressed himself in a highly questionable fashion; he speaks of a program of attack, of the preparation of a systematic attack, and of the decision to attack Poland. I fail in no way to recognize that there is good reason for the Prosecution to consider this document as particularly good evidence. I believe, however, that taking into account the numerous aspects which I pointed out, the value of this document as evidence in the case of Raeder is very much smaller than the Prosecution maintains, and very much smaller than a first glance at the wording of the Schmundt version might warrant. Schmundt obviously made an

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endeavor to formulate Hitler's contradictory, fantastic, and incongruous statements in a clear way in accordance with his own precise military manner of thinking. This gives the document a clarity which does not correspond to Hitler's speech. We do not know when Schmundt prepared the document, and he neglected to show the record he had made to the other participants.

During his examination and cross-examination the witness Admiral Schulte-Monting pointed to the contradictions in this particular document, which I need not repeat here. Paramount importance must however be given to the contradiction between these words and the words which Hitler at the same time again and again used in conversation with Raeder, and which always followed the same line, namely, that he did not intend to wage war and that he would not make excessive demands.

Raeder was shocked by this speech, and was only calmed by the private conversation which he had with Hitler directly after the speech, when Hitler assured him that he would under all circumstances settle the case of Poland in a peaceful manner, too. Raeder believed him, and he had every right to assume that Hitler was telling him the truth in answer to his very precise question. I draw attention to the very exact statements made on this document during the examination of Raeder and the examination of the witness Schulte-Monting.* I especially refer to the statement of Schulte-Monting that Hitler used the comparison that nobody would go to court if he had received 99 pfennig when claiming one mark, and added that in the same way he had obtained what he had demanded politically, and that consequently there could be no question of war on account of this last political question, that of the Polish Corridor. That Raeder himself was absolutely opposed to a war of aggression, and that in this respect he relied on Hitler's assurances, is proved by the statements of all witnesses, not least by the deposition by Doenitz that on the occasion of the U-boat maneuvers in the Baltic Sea in July 1939 Raeder expressed his firm conviction that there would be no war. Raeder, furthermore, knew that the Navy was absolutely unfit for a war at sea against Britain; he had explained that to Hitler again and again. But he was confident that in the Polish question Hitler, as he had said, would again negotiate; the testimony of the witness Dahlerus shows that negotiations did in fact take place, and they were even successful at the beginning. The reason why nevertheless the attempt finally failed and the second World War began, was explained in detail by the witness Dahlerus who illustrated the terrible tragedy of this event.

It seems to me important that up to August 1939 not only the witness Dahlerus, but also Chamberlain still believed in Hitler's

* Record of 22 May 1946, Volume XIV, Page 306.

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good will. It must be said again therefore that one cannot expect Raeder as a soldier to have been more farseeing and to have recognized Hitler's dangerous ideas, if men like Chamberlain, Halifax, and Dahlerus did not even at that time see through Hitler.

I have myself referred to the seriousness and the incriminating character of this document, but I ask the Tribunal to take into consideration that the incriminating material in this document, just as in the document of 5 November 1937, is of a political nature. As defense counsel for the Commander-in-Chief of the Navy, I have to judge the facts not from a political but from a military point of view. From a military point of view, however, it is absolutely impossible to follow the arguments of the Prosecution, because military leaders are not authorized to take part in decisions about war and peace, but merely obliged to carry out such military preparations as the political leaders consider necessary. In no country of the world does an admiral have to give his opinion on whether some future war, for which he has to make plans, will be a war of aggression or a defensive war. In no country of the world does the decision of the question whether war will be waged rest with the military, but on the contrary it is always left to the political leaders, or to the legislative bodies.

Accordingly, Article 45 of the German Constitution stipulates that the Reich President shall represent the Reich in international relations and continues: "The declaration of war and the conclusion of peace are decreed by a law of the State."

Therefore, the question whether a war was to be waged against Poland rested with the Reichstag, not with the military leaders. Professor Jahrreiss has already explained that in view of the constitutional development of the National Socialist State this decision rested in the last analysis exclusively with Hitler. For the case of Raeder it is of no consequence whether Hitler could be regarded as constitutionally authorized to start a war on his own decision, as he actually did in the autumn of 1939. The decisive factor is only that at all events the military leaders were not authorized, either in practice or constitutionally, to participate in this decision. The Prosecution cannot possibly maintain that every act of military planning on the part of Germany was a crime; for the military leaders, who merely receive the order to work out a certain plan, are neither authorized nor obliged to determine whether the execution of their plans will later on lead to an aggressive or a defensive war. It is well known that the Allied military leaders rightly hold the same view. No admiral or general of the Allied armed forces would understand a charge being brought against him on the basis of the military plans which were made on the Allied side, too, a long time before the war. I do not have to elaborate this

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point; I believe it will suffice if I refer to Document Number Ribbentrop-221. This is a secret document, which, according to the title, deals with the "Second Phase of the Anglo-French General Staff Conferences." This document shows that exact plans, regarding the Allied forces, were worked out for a war embracing many countries; plans which, according to this document, include a war in Europe and a war in the Far East. The document expressly says that the French and British commanders-in-chief in the Far East-I quote-"worked out a joint plan of operations," and it expressly speaks about the importance of possessing Belgian and Dutch territories as a starting point for the offensive against Germany. The decisive point about this parallel military case seems to me to be the fact that this document bears a date from the same month as Hitler's much-discussed speech to his commanders-in-chief, namely, May 1939. The document bears the caption: "London, 5 May 1939."

I now come to the address of Hitler to the commanders-in-chief on 22 August 1939 at the Obersalzberg.* Regarding the evidential value of Documents 1014-PS and 798-PS submitted by the Prosecution, I should like first of all for the sake of brevity to refer to the statements which I made to this Tribunal in connection with the formal application to withdraw Document 1014-PS. Although the Tribunal denied this application, I still maintain that the evidential value attached to these documents, and particularly to Document 1014-PS, is infinitesimal. The American Prosecution, in presenting these documents pointed out at the time** that the Tribunal should take into consideration any more accurate version of this speech which the Defense might be able to submit. I therefore submitted Exhibit Number Raeder-27,*** the version of the witness Generaladmiral Bohm, and I believe that when I submitted it, I showed convincingly that it is in fact a more accurate version than those provided by the Prosecution documents. Sir David Maxwell-Fyfe then put in two documents where Bohm's version is very scrupulously compared with the versions 1014-PS and 798-PS; in this way he considerably facilitated the comparison of these documents for all of us. So as on my part to assist the Tribunal and the Prosecution in making this comparison, I requested Generaladmiral Bohm in the meantime to compare these versions himself and in doing so to use the compilation of the British Prosecution which I mentioned just now. The result is contained in Bohm's affidavit.

When surveying all this material, it becomes clear that Document 1014-PS is extremely incomplete and inaccurate, all the more

so as, apart from its formal deficiencies, it covers only one and a half pages, and for this reason alone cannot be an adequate reproduction of a 21/2 hour speech.

Document 798-PS is no doubt more satisfactory, but it also contains numerous errors, as Bohm's affidavit shows. Not every sentence may be of importance, but the point is that some of the most important passages from which a charge against the commanders-in-chief might at best be deduced were actually, according to Bohm's sworn statement, never spoken at all. According to Bohm's affidavit, it is not true that Hitler said that he had decided as early as the spring of 1939 to attack the West first and the East later. Nor did he use the words: "I only fear lest at the last moment some swine will come to me with an offer of mediation; our political aims reach further." And, most important of all, the following words were never used either: "Annihilation of Poland ranks foremost; the aim is to liquidate the living forces, not to reach a certain line;" Hitler only spoke of the breaking-up of the military forces.

These differences in individual words and phrases are very important, because they concern the sharp phrases to which the Prosecution has frequently drawn attention, and from which the intention of a war violating international law, and even the intention to murder civilians, can be derived. If these phrases had been spoken, one could justly accuse the commanders-in-chief who were present of having waged the war and carried out Hitler's orders in spite of the criminal end in view. However, if these sentences were not used but, as Bohm testified under oath, other sentences referring merely to military aims. then the Prosecution cannot reproach any of the commanders-in-chief present for having remained at their posts. No one can in earnest demand of an admiral that he should resign his post a few days before the outbreak of a war, and thus shake the military power of his own country. I am quite aware of the fact that the most serious reproaches can be made against Hitler's attitude following the time of the Munich Agreement until the outbreak of the war in Poland, although, and this is decisive for the Raeder case, not against the military command, but exclusively against the political leader. We know that Hitler himself realized this and for that reason evaded all responsibility by his suicide without, either during or at the end of the war. showing the slightest regard for the life and the welfare of the German people.

I come now to Hitler's speech to the commanders-in-chief on 23 November 1939.* I shall deal with it quite briefly, and if you will permit me, Mr. President, I should like to do this now before the Tribunal adjourns, because the subject which follows is rather longer.

* See Document 789-PS, USA-93.

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THE PRESIDENT: Yes.

DR. SIEMERS: I think I can be relatively brief with regard to this last key document, which again fails to give the date on which the record was made and lacks a signature; we do not therefore know the author of this document. It is not an official transcript; and it again pursues a special objective. Early in November 1939 a serious difference had arisen between Hitler and the generals because Hitler wanted to start the offensive in the West immediately, whereas the generals were of a different opinion, and apparently hoped that the outbreak of a real World War might still be avoided. Hitler's dissatisfaction and annoyance with his generals are clearly evident. In consequence, by repeating, as usual, his past deeds, he strives to show what he has accomplished, and also to show that he has always been right. It is an absolutely typical Hitler speech reminiscent of his public speeches, in which he also loved to boast and to glorify himself as a genius. Hitler, after all, belonged to those people who always believe themselves to be right, and avail themselves of every opportunity to prove it. He also took the opportunity of using threats in order to nip in the bud the resistance in high military circles which had become known to him, thus strengthening his dictatorship. It is absolutely typical when he says in this document, literally: "I shall not shrink from anything and I shall destroy anyone who is against me." This was recognized by foreign military leaders, too. I draw attention for example to General Marshall's official report,* which speaks about the "lack of far-reaching military planning" and about the fact that the German High Command did not have an all-embracing strategic plan, and points out in this connection that "Hitler's prestige reached the stage at which one no longer dared to oppose his views."

Finally it remains to be mentioned that this last key document dates from a time when the war was already in progress, and that the military leaders cannot be blamed if in all their plannings during a war they strove to attain victory. The Allies too were planning at the same time. I refer to Documents Number Ribbentrop-222 and Exhibit Number Raeder-34, the former dates from 1 September 1939 and is a secret letter from General Gamelin to Daladier containing the basic idea that it was necessary to invade Belgium in order to wage the war outside the French frontier. The other document also deals with military plans; it is a secret letter from General Gamelin to General Lelong, Military Attache to the French Embassy in London, dated 13 November 1939, and also concerns the operation which the Allies had planned in Holland and Belgium.